AN 
 
 INQUIRY 
 
 THE PRESENT STATE 
 
 OF THE 
 
 CIVIL LAW 
 
 OF 
 
 ENGLAND. 
 
 BY 
 
 JOHN MILLER, ESQ. 
 
 OF LINCOLN'S INN. 
 
 LONDON: 
 
 JOHN MURRAY, ALBEMARLE STREET; AND 
 
 CHARLES HUNTER, BELL YARD. 
 
 MDCCCXXV.
 
 LONDON: 
 
 PRINTED BV C. BOWORTII, BELL YARD, 
 TEMPLE BAR.
 
 BARBARA; 
 
 CONTENTS. 
 
 INTRODUCTION Page I 
 
 The subject divided into three chapters : I. On the Constitution, 
 Procedure, and Doctrines of the Supreme Courts of Common 
 Law and Equity in England ; II. On some important special 
 Amendments of which the Law of England appears to be sus- 
 ceptible ; III. On the Means by which the general Improve- 
 ment in the Administration of Justice may most effectually be 
 facilitated. 
 
 CHAPTER I. 
 
 ON THE CONSTITUTION, PROCEDURE, AND DOCTRINES OF THE SU- 
 PREME COURTS OF COMMON LAW AND EQUITY, AND THE REA- 
 SONS WHICH HAVE BEEN URGED FOR AND AGAINST THE SEPARA- 
 TION OF THESE TWO JURISDICTIONS ,6 
 
 SECT. I. 
 
 Of the Constitution of the Supreme Courts of Common Law 1 3 
 
 Of the number of Judges . . 14 
 
 Of their times of sitting 16 
 
 Causes of which they have cognizance 20 
 
 Who are permitted to practise in them 22 
 
 Of their inferior Officers . 25
 
 CONTENTS. 
 
 SECT. II. 
 
 Of the Constitution of the Supreme Courts of Equity ... 30 
 
 Of the number of Judges 37 
 
 Their times of sitting 47 
 
 Of the causes of which they have cognizance 54 
 
 Who are permitted to practise in them 56 
 
 Of their Inferior Officers . 56 
 
 Masters in Chancery 56 
 
 Six Clerks 69 
 
 Registers 71 
 
 Commissioners of Bankruptcy 72 
 
 Cursitors . ....... . .. 77 
 
 Of the unnecessary Officers in Courts of Equity .... 78 
 
 SECT. III. 
 
 Of the Constitution of the House of Lords as the Court of Ultimate 
 Appeal from the Supreme Courts of Common Law and Equity 82 
 
 Increase of appeals to this court 86 
 
 Expediency of a change in its judicial constitution ... 89 
 
 SECT. IV. 
 
 Of the Procedure of the Supreme Courts of Common Law . 97 
 
 Method of commencing actions 102 
 
 prosecuting them by special pleading . . . .112 
 
 How it is brought to trial before a Jury 140 
 
 Importance of trial by Jury 1 42 
 
 Manner of administering an oath 146 
 
 arguing a cause before a Common Law Court . 154 
 
 Manner in which the judgment of the Court is executed . . 156 
 
 SECT. V. 
 
 Of the Procedure of the Supreme Court of Equity . . .161 
 
 Its admitted defects 1 72 
 
 Causes of delay in Courts of Equity 1 76 
 
 Manner in which Equitable Suits are commenced . . . . 1 84
 
 CONTENTS. V 
 
 How the defendant is compelled to appear 1 90 
 
 Delay caused by the multitude of parties which are now re- 
 quired . . .a ...:,. V 196 
 
 Manner of obtaining evidence in Courts of Equity and its de- 
 fects . . . ..... . . ". V . . . . .201 
 
 References to Masters in Equity 208 
 
 Expediency of some change in the manner in which Masters 
 
 transact business 209 
 
 Their functions . 211 
 
 It might be expedient to appoint Masters of different sorts . 212 
 
 Hearing of causes upon further directions 218 
 
 How decrees are drawn up by the Registers 223 
 
 Many motions now made unnecessary ........ 228 
 
 More business might be done by. motion or petition . . .230 
 
 SECT. VI. 
 
 Examination of certain Doctrines of Common Law . . . 232 
 
 History of Common Law 232 
 
 Of those doctrines of Common Law which tend to clog the admi- 
 nistration of justice 238 
 
 By taking insufficient bail 239 
 
 By privileging an outer door 240 
 
 By the want of a public prosecutor 243 
 
 By requiring causes to be tried in the county in which they 
 
 were committed 246 
 
 By refusing counsel to prisoners 247 
 
 By continuing the Benefit of Clergy 249 
 
 Examination of the rules which govern the acquisition and descent 
 
 of Real Estates 249 
 
 of denying validity to voluntary agreements without 
 
 consideration 251 
 
 of the doctrines of Attainder and Corruption of Blood 255 
 
 of the indissolubility of Allegiance 260 
 
 of Marriage 265 
 
 of relaxing strict rules of Common Law and Acts of 
 
 Parliament ./ . 269
 
 VI CONTENTS. 
 
 SECT. VII. 
 
 On the Doctrines of the Supreme Courts of Equity 1 .. . 2/2 
 Examination of the doctrines of Equity which favour Infants, Ex- 
 pectant Heirs, and Charities 277 
 
 which deprive parties of strict legal rights, or relieve 
 
 them from legal obligations *.'.. . . 284 
 
 In giving time for payment of money ,.-, 284 
 In restricting the powers of tenants for life . . . 285 
 
 the execution of powers y :.., r 286 
 
 In depriving executors of their legal rights .... 293 
 In restricting the Common Law rights of husband and 
 
 wife ... ."';' .! '/.;',.'.''.' 295 
 
 In opening the biddings at public sales 299 
 
 In the evasion of beneficial statutes 301 
 
 Statutes of Frauds 301 
 
 for Registration of Deeds . 302 
 
 Annuities 305 
 
 for determining differences by 
 
 Arbitration 306 
 
 for protecting Literary Pro- 
 perty . . . '. ' 308 
 
 CHAPTER II. 
 
 OF CERTAIN GENERAL ACTS WHICH MIGHT CONTRIBUTE TO THE 
 IMPROVEMENT OF COMMON LAW AND EQUITY. 
 
 SECT. I. 
 Of Consolidating and Declaratory Acts 315 
 
 1. Relating to those classes whose rights and duties are 
 most frequently brought before courts of justice . 322 
 
 2. To the qualities of different species of property . 323 
 
 3. To a consolidation of the Poor Laws . . . .524 
 
 4. To a consolidation of the Law of Marriage . . 328 
 
 5. To a consolidation of the Laws of Limitation . . 336 
 
 6. To a consolidation of the Law of Evidence . 344
 
 CONTENTS. Vll 
 
 SECT. II. 
 Of Remedial Acts .... ... . .... . . . .352 
 
 1. To oblige plaintiffs and defendants to give security for 
 costs 352 
 
 2. To enable Courts of Common Law to protect property 
 pending litigation 355 
 
 3. To give Courts of Common Law and Equity greater 
 power in awarding costs 350 
 
 4. To enable them to carry their decrees more effectually 
 into execution 363 
 
 5. To punish the malversation of their own officers . 367 
 
 6. In providing an adequate jurisdiction for the recoveiy of 
 small debts 368 
 
 7. In compelling the attendance of witnesses in foreign 
 causes 370 
 
 SECT. III. 
 Of the Simplification of the Law of Real Property . . . .373 
 
 1 . By shortening legal instruments 374 
 
 2. By the enfranchisement of copyholds .... 377 
 
 3. By the abolition of Seisin and substitution of Registra- 
 tion ............... 384 
 
 4. By legal enactments for the transmission of Real pro- 
 perty by operation of law or the will of the party . 39 1 
 
 5. By simplifying the means of charging Real Property for 
 raising money, or making provision for wives and chil- 
 dren ..... 413 
 
 CHAPTER III. 
 
 ON THE MEANS BY WHICH THE GENERAL IMPROVEMENT OF THE 
 ADMINISTRATION OF JUSTICE MAY MOST EFFECTUALLY BE FACI- 
 LITATED . 417 
 
 SECT. I. 
 Of the details connected with its administration . . . .419 
 
 1 . Courts of Justice should be convenient . . . .420 
 
 2. Proceedings should be public 421
 
 V1U CONTENTS. 
 
 3. The system of Judicature should be simple . . . 425 
 
 Too great variety of Jurisdictions in England . 425 
 Should not be 1 too many stages of appeal . . . 432 
 
 4. How far Courts of Justice should be stationary or am- 
 bulatory 435 
 
 SECT. II. 
 
 Of the Judges and Practitioners by whom justice is administered 437 
 
 Qualities of Judges 437 
 
 Should be advanced before they are too old 440 
 
 Their integrity 445 
 
 > < ' \ *i 
 
 They should not be over laboured 456 
 
 Are so in England 458 
 
 Necessity of increasing them 468 
 
 Their salaries should be liberal 469 
 
 Their rank and station 475 
 
 Importance of the character of Barristers and Solicitors . . 476 
 
 SECT. III. 
 
 Of the Laws themselves 48 1 
 
 Apprehensions caused by a change of laws generally found to be 
 
 groundless 503 
 
 Periods of agitation the most favourable to legislative improve- 
 ment 507 
 
 SECT. IV. 
 
 By what Means Improvements in the Law may usually be best 
 effected 520 
 
 Commissioners now generally appointed for that purpose in Eng- 
 land 521 
 
 Superintendance of the law in England devolves principally upon 
 the Lord Chancellor 524 
 
 Change which the law of England seems about to undergo . 527 
 
 Proposed legislative alterations should always be executed delibe- 
 rately, and examined by competent persons 528 
 
 Conclusion . 529
 
 ON THE PRESENT STATE 
 
 OF THE 
 
 THE laws of any country may be regarded in three 
 different aspects, as they relate to the past, the 
 present, or the future. They are considered in the 
 first of these points of view, when they have 
 entirely ceased to be in force, and are inves- 
 tigated by historians and philosophers for no other 
 purpose than to ascertain the causes from which 
 they arose, the changes they have undergone, and 
 their adaptation to the state and circumstances 
 of society at the period when they prevailed. 
 They are considered in the second point of view, 
 by the compilers of digests, commentaries or 
 abridgments, who contemplate them merely as 
 a body of municipal regulations possessed for the 
 moment of binding obligation, and deserving as 
 long as that continues, to be collected, arranged, 
 and elucidated with all practicable skill and dili- 
 gence. They are considered in the third point of 
 view, when the judicial institutions and proce- 
 dure actually subsisting in any particular state, 
 are tried not by their past, but present reason-
 
 2 ON THE PRESENT STATE OF THE 
 
 ableness and utility ; and when an endeavour is 
 made to determine the estimation in which the 
 several parts of them ought to be held, either by 
 collecting the opinions of those best qualified to 
 judge, or by a careful observation of the practical 
 effects which have resulted from their operation. 
 This process forms a species of experimentum crucis, 
 to which every system of law ought from time to 
 time to be subjected, both as the fairest criterion 
 of the real excellence of its principles and admi- 
 nistration, and as affording the fullest and most 
 satisfactory data for its prospective amelioration. 
 The following pages are intended as a specimen 
 of the manner in which this mode of investiga- 
 tion may be applied to the laws of England. The 
 difficulties with which such an undertaking is sur- 
 rounded are peculiarly discouraging. In some 
 cases, the facts upon which the reasoning proceeds 
 are so difficult to be ascertained, and the infer- 
 ences to be drawn from them so vague and 
 unsatisfactory, that the mind can arrive at no 
 conclusion in which it can confidently repose. In 
 others, though the facts are clear and the deduc- 
 tions obvious, the interests and feelings of so many 
 persons are so deeply involved, that with the 
 strongest desire to state neither more nor less than 
 the course of argument strictly requires, it is dif- 
 ficult to know how much to disclose or suppress, 
 without incurring the charge of invidiousness on 
 the one hand, or timidity on the other. In ad- 
 dition to this, all matters connected with the theory 
 or practice of the law, are of such general and
 
 CIVIL LAW OF ENGLAND. 3 
 
 paramount concernment, that the prudent part of 
 the community, and even those whose zeal for 
 its improvement is the most sincere and ardent, 
 still retain decided disinclination to see them 
 brought unnecessarily or disrespectfully into con- 
 troversy. In deference to this laudable disposi- 
 tion, I have in various parts of this treatise, in- 
 troduced a greater number of references and quo- 
 tations, than many of those into whose hands 
 it may fall, may deem either interesting or in- 
 structive. To those who are either busy or im- 
 patient, I am fully sensible how repulsive the 
 frequent mention of authorities almost invariably 
 proves. But I do not think I could with pro- 
 priety have omitted them. Those who are en- 
 gaged in the investigation of perplexing subjects, 
 and especially such as involve the rights and 
 interests of every member of society, are naturally 
 well pleased to adduce the opinions of persons of 
 approved credit and capacity, in support and con- 
 firmation of their own reasoning and deductions ; 
 and these authorities constitute at the same time 
 the best evidence which the public can either re- 
 quire or receive in favour of the conclusions which 
 they are brought to confirm. 
 
 The circumstances just noticed may perhaps be 
 received as some extenuation of the faults with 
 which the execution of this attempt maybe charge- 
 able. With all its defects, it will not prove wholly 
 useless, if it should have any tendency to induce 
 those who are more fully qualified to devote 
 their time and talents to subjects of such incal-
 
 4 ON THE PRESENT STATE OF THE 
 
 culable moment to the public welfare. A variety 
 of unconnected causes have lately conspired to 
 bring the administration of justice into more 
 general and keen discussion, than it has at any 
 former period been obliged to undergo. Since 
 this interest has been excited, every fact or argu- 
 ment which is unfavourable to any alteration of 
 existing institutions has been collected and ar- 
 rayed in their defence ; and yet in spite of all 
 this, a general and increasing conviction prevails, 
 that neither the law nor the means by which it is 
 dispensed, have received those ameliorations which 
 the change of times and actual circumstances of 
 society demand, and which a due degree of dili- 
 gence might have conferred upon them. Both 
 Houses of Parliament have now joined in the 
 discussion ; a considerable number of resolutions 
 and enactments relative to this subject have been 
 lately passed, and others of greater moment ap- 
 pear to be yet in preparation. These are cir- 
 cumstances which can neither be suppressed nor 
 denied ; and in whatever light statesmen and law- 
 yers may affect to regard them, they have all the 
 appearance of being the forerunners of some great 
 change to which the law of England is speedily 
 verging. Palliatives and expedients may retard 
 or conceal, but cannot prevent its progress ; and 
 it may be found when too late, that the applica- 
 tion of such fallacious remedies has been imper- 
 ceptibly but inevitably tending to an ultimate 
 subversion of its whole system, which by a deli- 
 berate, temperate, and effectual correction of its
 
 CIVIL LAW OF ENGLAND. 5 
 
 defects might have been permanently re-estab- 
 lished. 
 
 To obtain a complete knowledge of the nature 
 and extent of the imperfections which may be 
 pointed out in the law of England, it would be 
 necessary to take a minute survey of each of the 
 codes of which it is composed, and independent 
 jurisdictions by which it is administered. In 
 the accomplishment of this task, the attention 
 would naturally, in the first place, be drawn to the 
 chief courts of Common Law and Equity., It 
 might afterwards be directed to the King's Privy 
 Council, which, from the growing wealth and num- 
 bers of our colonists, as well as the incompatible 
 duties of most of the members of which it is com- 
 posed, the uncertainty of their attendance, and its 
 own inherent imperfections, has now become alto- 
 gether unfit for the duties which, as a Court of 
 Judicature, it is required to perform. Next come 
 the different Ecclesiastical Courts and the High 
 Court of Admiralty ; both of them presided over 
 with great integrity and ability, but alleged to be 
 among the most expensive ever known in any 
 country. The courts of Great Sessions in Wales 
 would afterwards follow ; the courts established 
 in almost every large town throughout the country, 
 for the recovery and redress of trifling debts and 
 injuries; and, last of all, the court of Quarter 
 Sessions, upon which such numerous and fatiguing 
 duties have been incautiously imposed, that county 
 magistrates are likely to become both unable and 
 unwilling to perform them. Into such an exten-
 
 6 ON THE PRESENT STATE OF THE 
 
 sive field of inquiry it is not here proposed to 
 enter. The following observations will be con- 
 fined to that part of the civil law of England 
 which is now administered in the Supreme 
 Courts of Common Law and Equity, and the 
 attention of the reader will be directed, in the 
 three succeeding chapters I. To such particu- 
 lars in each of these jurisdictions, whether de- 
 serving of praise or blame, as appear to be most 
 remarkable in their Constitution, Procedure, or 
 Doctrines; II. To some important special amend- 
 ments of which the law of England appears to be 
 susceptible; III. and lastly, To the means by 
 which the general improvement of the administra- 
 tion of justice may most effectually be facilitated. 
 
 CHAPTER I. 
 
 ON THE CONSTITUTION, PROCEDURE, AND DOCTRINES 
 OF THE SUPREME COURTS OF COMMON LAW AND 
 EQUITY IN ENGLAND. 
 
 THAT the rules of Law do not always correspond 
 with the dictates of natural Equity is so well un- 
 derstood, that it would be superfluous in this place 
 to point out the manner in which this arises. 
 Neither does it seem necessary to attempt to de- 
 termine, whether the ends of justice are upon the 
 whole more effectually answered by vesting the 
 administration of the two jurisdictions of Law and
 
 CIVIL LAW OF ENGLAND. 7 
 
 Equity in the same or in separate judges. This 
 question has given rise, both in England and else- 
 where, to more reasoning and reflection than al- 
 most any other legal topic, and men of the sound- 
 est theoretical and practical views have arrived at 
 different conclusions on the subject. I suspect 
 the most careful comparison of the advantages 
 and disadvantages which flow from their union on 
 the one hand, and their separation on the other, 
 will not be found to lead to any uniform result. 
 The nature and limits of the jurisdiction assumed 
 by courts of justice in any particular country, are 
 seldom determined at first according to any regu- 
 lar plan or set of abstract opinions, but, like other 
 parts of civil government, spring up and extend 
 their authority silently and imperceptibly, and 
 adapt themselves so insensibly to co-existing in- 
 stitutions, and to the manners, customs, and pre- 
 possessions of the people who are subject to their 
 control, that it is seldom practicable to make any 
 fundamental alterations in them afterwards. Nor 
 is it often prudent to attempt it. The same ends 
 are often attainable by different, or apparently 
 inconsistent means; and it is always better, where 
 it is practicable, to improve those institutions with 
 which the public is familiar, than to introduce 
 others with which it is entirely unacquainted. As 
 far as relates to this country, the discussion is 
 never likely to prove otherwise than an object of 
 attractive speculation, for when the merits and 
 defects of our several courts of law and equity 
 have been so long tried and understood, it would
 
 8 ON THE PRESENT STATE OF THE 
 
 be too hazardous an experiment to blend the two 
 together, for the purpose of ascertaining the effect 
 of such an unknown combination. 
 
 It is singular, that though opinion is so much 
 
 divided on the expediency of the separation of 
 
 courts of Law and Equity, England is the only 
 
 country as far as I know, either in ancient or 
 
 modern times, in which that separation has been 
 
 fully effected. This circumstance may therefore 
 
 fairly be urged as an argument against such a 
 
 separation on the one hand, while on the other 
 
 the success with which it has in that case been 
 
 attended, pleads as powerfully in its favour. As 
 
 far as it is possible to come to a determination on 
 
 so contested a topic, it would seem that under an 
 
 absolute government, or where a country is neither 
 
 rich nor advanced in civilization, the separation 
 
 of Law and Equity is neither practicable nor 
 
 advisable; but that such a measure may prove 
 
 highly eligible among a free and wealthy people, 
 
 where every individual is able and willing to 
 
 maintain his rights and privileges, and solicitous 
 
 rather for the best than the most expeditious 
 
 judgment which can be pronounced upon them. 
 
 With this great benefit, the division of them is 
 
 certainly attended. Each jurisdiction then knows 
 
 more distinctly what its proper province is, and 
 
 the jealousy and emulation which naturally subsist 
 
 between them cherish that salutary spirit which 
 
 neither commits encroachments itself, nor allows 
 
 them to be made by others. What has taken 
 
 place in the United States of North America af-
 
 CIVIL LAW OF ENGLAND. 9 
 
 fords some countenance to this opinion. Though 
 they have always adopted the Common and Equi- 
 table law of England in their courts of justice 
 where there is no express local enactment to the 
 contrary, yet both before and after the com- 
 mencement of their independence, Common Law 
 and Equity were dispensed together. While the 
 judges acknowledged it to be their duty when- 
 ever they could to determine according to equity, 
 as forming part of the law and in order to pre- 
 vent a failure of justice, they explicitly declared 
 that they had neither equitable forms, nor the 
 methods of carrying equitable cases into execu- 
 tion.* Since that time, I have been informed, 
 that the administration of Equity has been sepa- 
 rated from that of Common Law in the states of 
 New York, Massachusetts, and Vermont ; and it 
 is a fair presumption, that so many independent 
 communities, consisting of an intelligent popula- 
 tion, would not have ventured upon such a step 
 without grave consideration. As the gradual in- 
 troduction of Courts of Chancery into North 
 America seems favourable to trie separation be- 
 tween Common Law and Equity at a certain pe- 
 riod in the progress of society, the history of our 
 own Court of Exchequer furnishes evidence to 
 the same effect. As it is the only supreme court 
 in England where Common Law and Equity are 
 dispensed by the same persons and in the same 
 forum, it is natural to expect, that if any benefit 
 
 * Dallas's Pennsylvania!) Reports, vol. i. p. 214.
 
 10 ON THE PRESENT STATE OF THE 
 
 results from their association, it would have ele- 
 vated the character of the court of Exchequer 
 beyond that of any concurring legal or equitable 
 1 jurisdiction. The reverse of this has proved to 
 be the case. Its reputation is undeniably inferior 
 to that of any of its competitors, and to whatever 
 causes the effect may be owing, it is well known 
 that its judgments, both at Common Law and in 
 Equity, are with few exceptions regarded as of 
 less weight and authority than those of any other 
 tribunal in Westminster Hall. 
 
 Assuming however that the separation of Com- 
 mon Law and Equity may become an expedient 
 measure in an advanced stage of society, that ex- 
 pediency continues no longer than while each of 
 these two jurisdictions adheres rigorously to the 
 purposes of its institution. It is the business of 
 Common Law courts in all cases to expound the 
 law as it stands, drily and correctly. When they 
 have done this, they have discharged their duty. 
 With the consequences they have no concern. If, 
 by the rules of Common Law, any party is pre- 
 cluded from proving important facts; if, when 
 proved, the judge is not authorised to take them 
 into consideration in pronouncing his decision; 
 or if from any other cause the rules of law do 
 not reach the substantial justice of the case, 
 Equity steps in, and it becomes its province to 
 afford relief. In what manner, or according to 
 what rules this relief should be afforded, then be- 
 comes the question. To attempt to redress all 
 injuries sustained by easy or incautious men would
 
 CIVIL 'LAW OF ENGLAND. 11 
 
 be endless, and by all who are unprotected impos- 
 sible. To entitle a suitor to the assistance of a 
 Court of Equity, he is bound to shew, that jus- 
 tice and public utility would require every other 
 person placed in similar circumstances to receive 
 that relief which he thinks fit to ask. Even when 
 the court is satisfied that its interference is ne- 
 cessary, the judge by whom the cause is heard, is 
 not left entirely at liberty to pronounce that sen- 
 tence, which after an examination of the whole 
 circumstances of the case, natural equity might 
 appear to him to dictate. The confusion and 
 despotism to which such a disregard of precedent 
 and practice inevitably leads, would soon be felt 
 to be intolerable. There is reason to question 
 whether Courts of Equity in England have not 
 diminished their usefulness by running into an 
 opposite extreme. Nor is the anomalous nature 
 of its jurisdiction by any means unlikely to occa- 
 sion such an error. If it is imagined that the 
 English Court of Chancery serves at present 
 merely to supply the defects and mitigate the 
 rigour of the courts of Common Law, I apprehend 
 the slightest attention to its proceedings will shew 
 the fallacy of such a supposition. It is neither 
 confined to this province in theory or practice. 
 A large portion of the business which it transacts 
 is of a nature with which Equity, in the natural 
 and correct acceptation of that term, can have no 
 interference. Take, for example trusts, matters 
 of account, the payment of legacies, and specific 
 performance of agreements. Though questions re-
 
 12 ON THE PRESENT STATE OF THE 
 
 lating to these subjects are in England usually 
 brought into courts of Equity, which is perhaps 
 a more convenient forum than any court of Com- 
 mon Law for their determination, yet the rules 
 according to which they have been there decided 
 are in reality rules of law, and ought to be as 
 strictly observed as any other rules which Com- 
 mon Law has recognised. It is the constant ap- 
 plication of rules of this description, which has 
 perhaps induced courts of Equity imperceptibly 
 to extend the same rigorous adherence to prece- 
 dent, to cases which are truly of an equitable na- 
 ture. Even where cases are confessedly equi- 
 table, certain landmarks must be laid down by 
 judges for the uniformity of their own procedure. 
 All this admits of no question. The real difficulty 
 is whether these landmarks and the decisions in 
 which they first become discernible or settled are 
 not now followed with too much servility. If a 
 case occurs, which judge after judge confesses to 
 be a proper subject for equitable relief, but that 
 he is not at liberty to run counter to the uniform 
 stream of practice, or is debarred from adminis- 
 tering it for want of jurisdiction, the understand- 
 ing begins to wonder for what end courts of 
 Equity were created at all, and how their name 
 is so strangely at variance with their practice. It 
 is as prejudicial for courts of Common Law to be- 
 come too mild, as for courts of Equity to assume 
 too much severity. It is in the invariable observ- 
 ance of that line of demarcation which has been 
 fixed between them, that the whole advantage
 
 CIVIL LAW OF ENGLAND. 13 
 
 of any separation consists. No emergency can 
 arise in which it can without detriment be disre- 
 garded. When Courts of Law relax their rules 
 from considerations of natural equity, and the 
 rules of Courts of Equity become so inflexible 
 that they preclude that relief which was the sole 
 object of their institution, the separation of the 
 two jurisdictions has degenerated into one of the 
 most inconvenient and oppressive expedients that 
 ever was adopted for the distribution of justice. 
 Having made these preliminary observations, 
 we shall now proceed to make some inquiry into 
 the Constitution, Procedure, and Doctrines of the 
 supreme Courts of Common Law and Equity ; 
 beginning on each occasion with the Courts of 
 Common Law, the harshness incidental to whose 
 judgments it is the principal business of Courts 
 of Equity to correct. 
 
 SECTION I. 
 
 Of the Constitution of the Supreme Courts of Common 
 
 Law. 
 
 THE supreme courts set apart for the adminis- 
 tration of Common Law in England are, the 
 Courts of King's Bench, Common Pleas, and 
 Exchequer, the last of which serves as a court of 
 Equity as well as a court of Common Law. The 
 points respecting them which it seems most im-
 
 14 ON THE PRESENT STATE OF THE 
 
 portant to notice are, 1. The number of judges 
 of which they are severally composed ; 2. The 
 times during which they severally sit; 3. The 
 actions that may be brought in each ; 4. The 
 persons that practise in them ; and 5. The duties 
 and emoluments of their inferior officers. 
 
 1. The number of the judges of which each of 
 the Courts of Common Law consists. There is 
 nothing within the sphere of jurisprudence, about 
 which greater diversity of sentiment seems to 
 have prevailed in different countries, than the 
 number of judges best fitted to constitute a court 
 of justice. Scarcely any two states, in past or 
 present times, can be pointed out who have agreed 
 upon it. In England, the number of the judges is 
 entirely dependant on the will of the Crown, and 
 has varied under different reigns in all the three 
 Common Law Courts.* This fluctuation appears 
 to have been greatest in the Common Pleas, which 
 in ancient times was the chief court for the de- 
 termination of questions of Common Law, and 
 there the number of judges has varied from three 
 to nine, according to the quantity of business 
 which they had to dispatch. James I. during the 
 greater part of his reign, appointed five in the 
 courts of King's Bench and Common Pleas, in 
 order to have the benefit of a casting vote in case 
 of a difference in opinion ;f and, for once, the 
 fondness of that monarch for metaphysical states- 
 
 * Dugdale's Origines Jurid. c. xviii. Madox's Hist, of the 
 Exchequer, p. 743. Hargrave's Law Tracts, p. 297. 
 t Blackstone's Commentaries, v. iii. p. 40.
 
 CIVIL LAW OF ENGLAND. 16 
 
 manship seems to have guided his judgment aright. 
 For the last century and a half, each of the three 
 courts has consisted of one chief and three puisne 
 judges. Why they should have been made to 
 consist of four, in preference to any other num- 
 ber, it is not easy to discover, as an equality of 
 votes is attended with obvious practical inconve- 
 niences. Should this equality happen in case of 
 an appeal from an inferior court, the decision of 
 the inferior court stands ; and if the question 
 before them is a point which has been reserved 
 for their opinion when the cause was tried on the 
 circuit, no judgment can be pronounced at all. 
 The first of these results is unsatisfactory to the 
 suitor and the country ; the second is still more 
 so, and tends to throw discredit on the dignity 
 and consequence of the court itself. Either five 
 or three seems preferable, especially the latter, 
 and that is the number to which the judges in all 
 the courts of Common Law may now be said to 
 be virtually reduced. One of the judges of 
 King's Bench since the 57 Geo. III. c. 11. sits 
 apart from his brethren as long as is necessary in 
 the forenoon for the justification of bail, on all days 
 in the week in term time, except those which are 
 called paper days; and another goes to attend 
 Chambers in Serjeant's Inn at three, to dispose of 
 the irksome and increasing business which was 
 formerly dispatched there in the evening. The 
 Chief Justice of Common Pleas was in the begin- 
 ning of 1824 empowered by royal warrant to sit 
 during the session of parliament to hear appeals in
 
 16 ON THE PRESENT STATE OF THE 
 
 the House of Lords ; and the Chief Baron of Ex- 
 chequer is authorised by 57 Geo. III. c. 18. to sit 
 alone at his discretion as a judge in Equity, while 
 the three puisne barons continue to dispatch the 
 ordinary business of the court. This practice of 
 withdrawing judges to another place for the pur- 
 pose of performing extraneous duties, while the 
 courts are sitting of which they still remain con- 
 stituent members, is of recent origin, and seems 
 one of the most unadvisable alterations which has 
 ever been introduced into English judicature. It 
 raises surmises in the minds of suitors and prac- 
 titioners that causes are lost or won according to 
 the casual presence or absence of particular per- 
 sons among those whose province it is to decide 
 upon them ; it unhinges the minds and distracts 
 the attention of the judges themselves; and almost 
 conclusively proves that the number of persons 
 who are made to constitute a court is a matter 
 deserving of no consideration. If two or three 
 be found to answer as well as four, there can be 
 no reason why four should be appointed at all ; 
 and if four are necessary, as it is impossible to 
 tell at what hour important questions may arise, 
 they ought all to attend during the whole sittings 
 of the court, to deliver their opinions on every 
 matter which is brought before them. 
 
 2. The times at which they usually sit, and the 
 length of their sittings. Each of the three Com- 
 mon Law courts sits in Westminster Hall every 
 day, except holydays, during the four yearly law- 
 terms, each of which terms lasts on an average
 
 CIVIL LAW OF ENGLAND. 17 
 
 about three weeks. Two of them are fixed 
 and two moveable. Michaelmas term always 
 begins for the dispatch of business on the 6th of 
 November, and ends on the 28th of November ; 
 and Hilary begins on the 20th of January, and 
 ends on the 12th of February. Easter and Tri- 
 nity are moveable. The time during which courts 
 of justice sit must naturally be dependent on the 
 number and intricacy of causes brought before 
 them ; but the court of King's Bench usually sits 
 in term time from four to six hours every day. 
 The court of Common Pleas sits an hour or two 
 less than King's Bench, and the court of Ex- 
 chequer as much less than that of Common Pleas. 
 As the stated terms have of late been found 
 insufficient for the dispatch of business, any 
 three or two judges of King's Bench were in 
 1822, empowered by 3 Geo. IV. c. 102. to sit by 
 royal warrant at Serjeant's Inn, Westminster 
 Hall, or any other convenient place, on as many 
 days in the interval between any two terms, as 
 his Majesty may appoint, " for the dispatch of 
 " such matters as might then be depending in 
 " the said court, whether on the crown or plea 
 " side thereof;" and warrants have been regularly 
 issued for that purpose ever since the act was 
 passed. Before and after and sometimes also 
 during term-time, the Chief Justices of King's 
 Bench and Common Pleas, and the Chief Baron 
 of Exchequer, sit alone at Nisi Prius ; the two 
 former at Westminster and London, and the latter 
 in Westminster only, as often as may be requisite, 
 
 c
 
 18 
 
 for determining causes which require the assist- 
 ance of a jury. Besides this, the Common Law 
 judges have the labour of trying civil and criminal 
 causes which are brought before them in the 
 course of the spring and summer circuits. For 
 this puprose the whole of England is divided into 
 six circuits, two of the judges being appointed to 
 each circuit, not according to the court in which 
 they sit in Westminster Hall, but as their own 
 convenience or the public service may render 
 most desirable. The commencement of the sum- 
 mer circuit, like that of Easter and Trinity terms, 
 depends upon the feasts of the calendar : being 
 nearly a month earlier in some years than others. 
 The circuits in North and South Wales do not 
 take place at exactly the same time with those in 
 England, nor are those who preside in them in- 
 vested with the same rank and dignity, but are 
 merely practising barristers specially appointed 
 to officiate on that occasion, and returning after- 
 wards to their usual practice at the bar. That 
 a superior class of judges should, in the present 
 day, be employed in England and an inferior 
 one in Wales, for administering the same law, 
 in questions of the same nature, and under the 
 same government, seems neither reasonable nor 
 becoming. It is certainly true that several per- 
 sons, whose opinions are entitled to the greatest 
 deference, have defended the continuance of 
 separate circuits for Wales, upon reasons drawn 
 chiefly from the difficulty of apportioning the 
 Welsh counties conveniently among the other cir-
 
 CIVIL LAW OF ENGLAND. 19 
 
 cults, and from alleged peculiarities in the manners 
 and customs of the people. Though these reasons 
 may fail to produce conviction, they shew that 
 frequent reflection combined with extensive local 
 knowledge are requisite in order to arrive at a 
 sound conclusion on subjects of this nature. The 
 appointment of one sort of judges to go the circuits 
 in England and another in Wales, is not the only 
 subsisting judicial arrangement mentioned under 
 this head, of which the propriety may be ques- 
 tioned. The irregularity of the times at which 
 the summer circuit as well as Easter and Trinity 
 terms commence, together with the insufficient 
 length of the ancient law-terms for the dispatch 
 of the present accumulation of business, are well 
 worthy of consideration. In a country like this, 
 where every kind of communication is so rapid, 
 and where the activity and industry of the whole 
 community requires every man to adjust his 
 movements with the greatest exactness, it be- 
 comes an object of the utmost importance to 
 introduce uniformity and regularity into every 
 department of government. If the beginning of 
 two terms is fixed, why should not that of the 
 circuits and the other two be fixed also? Par- 
 ticular periods might be pitched upon for that 
 purpose, which the season of the year, country 
 business, and the convenience of suitors and wit- 
 nesses rendered most expedient ; and if it were 
 properly selected, it is most likely that all parties 
 concerned in the administration of law, would 
 find themselves benefited by the change. The 
 extension of some or all of the present law-terms 
 
 c2
 
 20 ON THE PRESENT STATE OF THE 
 
 seems equally urgent. If the arrear of business 
 is temporary, let a temporary remedy be applied ; 
 but if the increase is permanent, there can be no 
 reason why the remedy should not be permanent 
 also. Instead of the judges holding a kind of 
 surreptitious sittings before and after term, in 
 Serjeant's Inn, Gray's Inn, or any other place, 
 where they may be able to procure admission, it 
 would be more convenient for themselves that 
 their termly sittings in their own courts should 
 be permanently and openly prolonged, and at the 
 same time more acceptable to the public that the 
 dispensation of justice should on no occasion 
 be removed from Westminster Hall, as that is 
 the place which immemorial usage has consecrated 
 in the eyes of the people as their general judg- 
 ment-seat. 
 
 3. The causes of which each of the Common 
 Law courts has cognizance. On this point 
 there is no occasion to. enlarge. Without advert- 
 ing to the peculiar duties which each of them is 
 supposed to have originally discharged, it may be 
 enough to mention that the court of King's Bench 
 still retains exclusive jurisdiction in all criminal 
 actions denominated pleas of the crown, in writs 
 of error from the Common Pleas, and other infe- 
 rior courts of record, and in the trial of issues 
 joined in the petty bag. The court of Common 
 Pleas has similar power in fines and recoveries; 
 in actions of waste and real actions, both of which 
 are now extremely rare; and in the outlawing of 
 defendants in certain actions of a personal nature.
 
 CIVIL LAW OF ENGLAND. 21 
 
 When the court of Exchequer sits as a Common 
 Law court, it has exclusive jurisdiction in all 
 matters belonging to the revenue of the crown. 
 Actions not connected with any of these subjects 
 may be brought in any of the courts of Common 
 Law the suitor pleases ; but a particular fiction 
 must be used in case they are brought in King's 
 Bench or Exchequer. The fiction of King's Bench 
 is, that the defendant is then in the custody of the 
 Marshal of the Marshalsea prison ; while that em- 
 ployed in the Exchequer is, that the plaintiff is 
 the King's debtor, and will not be able to pay the 
 King his due, unless he receive his own from the 
 defendant. The fees of inferior officers, the steps 
 of procedure, and the expenses incurred in the 
 prosecution of an action, vary considerably ac- 
 cording to the court in which it is brought and 
 the form in which it is conducted. Both these 
 particulars might advantageously undergo altera- 
 tion. Fictions in law should never be tolerated 
 farther than is absolutely necessary ; and nothing 
 could tend more to give satisfaction to the 
 suitors, and promote an equal division of labour 
 among the different courts, than that justice should 
 as far as possible be dispensed in all of them, 
 with the same skill, according to the same form 
 of process, at the same expense, and with the 
 same expedition. It is owing in some measure to 
 a departure from this principle, that the court of 
 Exchequer has hitherto rendered less assistance, 
 either to the courts of Common Law or Equity, 
 than might have been expected from it. Every
 
 22 ON THE PRESENT STATE OF THE 
 
 one at all acquainted with its formation or cha- 
 racter is aware, that there are various causes co- 
 operating to its disadvantage. Among these some 
 antiquated regulations to which it still adheres, 
 and in particular certain exactions of the clerks 
 in court, which are said not to be allowed either 
 in King's Bench or Common Pleas, are alleged 
 to have considerable influence. Change this sys- 
 tem ; adopt the most proper means for making the 
 court of Exchequer capable and accessible, and 
 it will soon rise more nearly on a level with its 
 fellows. As things now stand, tithes and re- 
 venue causes constitute almost the only laborious 
 business which is brought before it. Perceiving this 
 to be the case, the House of Lords has proposed, 
 " that the execution of matters arising out of local 
 " and private Acts of Parliament relating to canals, 
 " navigations, aqueducts, avenues to bridges, in- 
 " closures, docks, railways, tram-roads, opening 
 " and paving streets, supplying towns with wa- 
 " ter and gas, and various other speculations,"* 
 should be withdrawn from other courts of Equity, 
 and confined exclusively to the court of Ex- 
 chequer. Those by whom this plan is recom- 
 mended must have laboured under some sort of 
 misconception. The management of the whole 
 railways and tram-roads in the kingdom, together 
 with the water, gas, and other speculations speci- 
 cified in the Report, although they make a formi- 
 
 * Lords' Report on the Appellate Jurisdiction of the House of 
 Lords, iu 1823, p. 10.
 
 CIVIL LAW OF ENGLAND. 23 
 
 dable appearance upon paper, form in reality but a 
 trifling part of the burden under which the courts 
 of Equity are now groaning. The removal of that 
 sort of business therefore would hardly be any per- 
 ceptible relief to them, and its acquisition could 
 confer little additional credit upon the court of 
 Exchequer. But even if the suits here mentioned 
 had been as burdensome and difficult as they are 
 otherwise, the forcible transference of them from 
 one court to another by legislative enactment, 
 would only have become the more objectionable. 
 Where only one court of competent jurisdiction is 
 established, the suitors must necessarily be satis- 
 fied with its decisions ; but where several of these 
 are open at the same time, and the use of all ex- 
 cept one is prohibited by legislative authority, 
 such a proceeding appears to be in opposition to 
 every principle of private right and public freedom. 
 4. The persons who are entitled to act in them 
 as practitioners. All students of law who have 
 been called to the bar, are entitled to practise in 
 all the supreme courts, both of Common Law and 
 Equity; and all attornies and solicitors are entitled 
 to practise in those courts of Common Law and 
 Equity on the rolls of which they are entered 
 To this general rule there is only one exception : 
 No barrister is permitted to practise in the court 
 of Common Pleas in term-time, who has not been 
 raised to the degree of a serjeant-at-law. This 
 order is of great antiquity; and at a distant period, 
 when the court of Common Pleas, according to 
 Lord H ale's expression, was " the great orb,
 
 24 ON THE PRESENT STATE OF THE 
 
 " wherein the greater business between party 
 " and party did or should move," it was of prime 
 importance, and both then and in later times, a 
 considerable portion of its members have ranked 
 as high in point of legal and constitutional learn- 
 ing as any individuals of whom this country can 
 boast. Those days have long since passed away. 
 The bulk of the questions now brought into courts 
 of Common Law are of a nature totally different 
 from those of which the court of Common Pleas 
 has exclusive possession. The Serjeants have 
 consequently sustained a great decline both in 
 fame and fortune. 
 
 -t/?''. '! i ; .r 1 .. 
 
 Fuimus Troes. Fuit Ilium : etingens 
 
 Gloria Teucrorum. Ferus omnia Jupiter Argos 
 
 Transtulit. 
 
 They may lament, but cannot counteract the 
 change. The suitors now repair to other courts, 
 where all barristers have a right to be heard, and 
 where any individuals may be selected from 
 among them, to whom they think their cause may 
 most advantageously be entrusted. Why then is 
 this fraternity continued? It is injurious to the 
 bar, as the length of standing required for admis- 
 sion, and heavy charges consequent upon it, must 
 prevent persons from making application for that 
 purpose who are well entitled to it ; and even when 
 application has been made, the power which the 
 Lord Chancellor possesses of granting or with- 
 holding it, gives him a controul over the profession 
 of the law, with which no conscientious public
 
 CIVIL LAW OF ENGLAND. 25 
 
 officer can desire to be invested. It is even more 
 injurious to the general usefulness of the court than 
 to the interests of the bar. Those who have a mo- 
 nopoly of legal argument are as likely to become 
 careless or inexpert in the management of their 
 business as monopolists of any other description,' 
 and it is not natural to suppose, that so many 
 causes will be heard before a tribunal where there 
 are only ten or twelve practitioners as where 
 there are two or three hundred. When there 
 is so much necessity as exists at present for in- 
 creasing the efficiency of all courts of justice, one 
 is surprised how so complete a specimen of legal 
 monachism has been permitted to outlive the 
 eighteenth century. The proper period for the 
 dissolution of the order would have been in 1731, 
 when the 4th Geo. II. c. 26, abolished the old 
 law-hand writing, law French, arid law Latin. 
 
 5. Their Inferior Officers. It does not fall within 
 the limits of this inquiry to enter into a detailed 
 examination of the number, duties, and emolu- 
 ments of the various officers attached to the Com- 
 mon Law Courts of Westminster Hall. Upon the 
 whole, there is perhaps less amiss in this depart- 
 ment of the administration of justice, than, under 
 all circumstances, might have been expected. A 
 slight inspection of it however will suffice to 
 shew, that in the three courts taken together 
 there are to be found upwards of forty officers, 
 who levy at least 30,000 a year on the public, 
 whose places are either complete sinecures, or 
 where the profits so exorbitantly exceed the la- 
 bour, as to stand urgently in need of reformation.
 
 26 ON THE PRESENT STATE OF THE 
 
 Among the last class may be mentioned the Mar- 
 shal of the King's Bench prison, who, though he 
 ranks as nearly the lowest officer in the court to 
 which he is attached, is generally supposed to de- 
 rive a larger income from his office than that of 
 the Chief Justice, whose prison he is appointed to 
 keep. Perhaps no other situation could be named, 
 where the nature of the service and its remunera- 
 tion are on so preposterous a footing as this ; but 
 there are many to be found where there is a com- 
 plete inversion of the ratio they ought naturally 
 to bear to one another. A few of these offices 
 are hereditary ; some are in the gift of the two 
 Chief Justices and Chief Baron, or Chancellor of 
 the Exchequer; while others are avowedly sold by 
 the Chief Justices as a matter of right when they 
 become vacant, and the money which is received 
 from the sale of them forms as regular a part of 
 the profits of their office as the provision set apart 
 for their support by the legislature. It ought at 
 the same time in fairness to all who have been 
 engaged in such transactions to be observed, that 
 scarcely any instance has for many years occurred, 
 where any person who has been permitted to be- 
 come the purchaser of a legal office, has failed in 
 the proper discharge of the duties incumbent on 
 him to perform. Nothing can speak more strongly 
 in favour of the feeling which prevails on such 
 subjects, or of the salutary influence of publicity 
 and responsibility. The usage itself continues, as 
 it previously appeared to be, utterly indefensible. 
 It appears by the Calendar to the Journals of the
 
 CIVIL LAW OF ENGLAND. 27 
 
 House of Lords, that so long ago as the time of 
 Edward VI. the Commons for a considerable time 
 insisted on the rejection of that clause in the 5th 
 and 6th of that king's reign, which allows the two 
 Chief Justices to sell certain offices,* and it is 
 much to be lamented, that their efforts should have 
 been unsuccessful. As a means of subsistence for 
 the judges themselves or the members of their fami- 
 lies, it is in the highest degree unequal and preca- 
 rious; and even though this objection were removed, 
 it would still remain a species of traffic, in which it 
 is not desirable that any minister of justice should 
 be either permitted or tempted to engage. The 
 plain rule to be observed on the subject is, that no 
 offices should exist in any court of law, but such 
 as are indispensibly necessary. Those should 
 be gratuitously conferred upon the persons best 
 qualified to fill them, who, in return, should be 
 required to do the duty in person, and never al- 
 lowed to do it by deputy. The observations 
 which Lord Hale has made on the officers of the 
 Court of Exchequer are well worthy of attention. 
 " There are, at this day, many great officers that 
 " receive the profit and fees of their office, and 
 " either do not at all attend to it, or know not 
 " what belongs to it, but only perchance once a 
 " term sit with some formality in their gowns, but 
 " never put their hands to any business of their 
 ' office, nor indeed know not how. These, and 
 " some other nominal officers, are great men, enjoy 
 
 * Harrington's Observations on the Statutes, p. 530.
 
 28 ON THE PRESENT STATE OF THE 
 
 " their pleasures, understand not or attend not to 
 " their offices, but dispatch all by deputies ; and 
 " by this means an unnecessary charge is drawn 
 " upon the king and his people; for the chief offi- 
 " cer hath the profit, and the deputy he hath some, 
 " or else he could not live. If these offices are not 
 " necessary, why are they continued? If they 
 " are, why should they not be executed at the 
 " charge only which accrues from the deputy, and 
 " the benefit of the nominal officer that doth no- 
 " thing be retrenched as a useless charge ? The 
 " things that would be convenient in this business 
 " which would possibly remedy it, are 1. To re- 
 " duce the perquisites of these offices to such a 
 " medium as might be sufficient for them that exe- 
 " cute the business ; and to pare off that superflu- 
 " ous redundance, which serves only to maintain 
 " an idle grandeur that sits still, and doth nothing 
 " but take the account of their perquisites at the 
 " term's end. 2. That all persons that are to be 
 " appointed officers be personally resident upon 
 " their office, and not to perform by deputy; and 
 " no office of this kind to be granted to be exercised 
 " by deputation. 3. That all these offices may be 
 " granted to men educated and experienced, and 
 " not to courtiers or great men. 4. That there 
 " be no sale of offices of this nature. I do speak it 
 " knowingly. The king loseth five times more by 
 " any such office that he sells, than the profit 
 " amounts to; and it is the dearest gratification of a 
 " courtier or servant that can be imagined, and 
 " the greatest detriment to the king, when an of-
 
 CIVIL LAW OF ENGLAND. 29 
 
 " fice is made the reward of that man's service 
 " that knows not how to use it. It were more 
 " profit to the king to bestow a pension to the 
 " value of the office to such a person ; and when 
 " he hath done, to bestow the office upon an ho- 
 " nest man that knows how to use it. It is true I 
 " know many offices are already filled in this kind; 
 " and reversions upon reversions granted ; and an 
 ** act to remedy it for the future, only were to 
 " make a provision to begin the next age. It were 
 " worth a present provision, and an inspection to 
 " be made at present, and resumption by act of 
 " parliament to remedy it, with allotment of some 
 " moderate pensions to some that would be re- 
 " moved upon this account; and I believe the 
 " king nor people would be no losers by it."* 
 
 The remarks here made on the offices in the 
 court of Exchequer are applicable to every office 
 in every court whatever. Whether the patronage 
 or sale of them is vested in the king, or any pri- 
 vate person, is of little moment. The burdens 
 they impose upon the country are the same in 
 both cases, and as soon as any offices are demon- 
 strated to be useless or inadequate, it is equally 
 wise in point of policy, and economical in point of 
 management, to buy up all interests in them then 
 subsisting, in order that the offices themselves 
 may be either remodelled or abolished. 
 
 * Hale on the Amendment of Laws, printed in Hargrave's Law 
 Tracts, p. 279.
 
 30 ON THE PRESENT STATE OF THE 
 
 SECTION II. 
 
 On the Constitution of the Supreme Courts of Equity. 
 
 THE High Court of Chancery and the Court of 
 Exchequer are the only supreme courts of equity 
 in England. The chief part of the important suits 
 which are brought into Exchequer in its charac- 
 ter of a Court of Equity, relate to the subject of 
 tithes ; and as probably not a tenth part of the 
 business, either in point of quantity or difficulty, 
 which arises in equity is there disposed of, it 
 happens that whenever courts of Equity are men- 
 tioned, the Court of Chancery is generally sup- 
 posed to be understood, and to it therefore the 
 following observations are almost exclusively di- 
 rected. 
 
 The three tribunals of the Lord Chancellor, 
 Master of the Rolls, and Vice Chancellor, which 
 are now established in Chancery, form but one 
 court, over which the Lord Chancellor presides, 
 with very extensive powers of superintendence 
 and controul. All bills of complaint are now 
 addressed to him, though in antient times they 
 were to the Master of the Rolls;* and the Master 
 of the Rolls and Vice Chancellor, however high 
 and responsible officers, are, according to the pre- 
 sent constitution of the Court of Chancery, only 
 regarded as assistants to him in discharging the 
 duties of his exalted station. At the same time, 
 
 * Discourse of the Judicial Authority of the Master of the 
 Rolls, p. 63, et seq.
 
 CIVIL LAW OF ENGLAND. 31 
 
 as it is generally in the power of the plaintiff to 
 have a cause set down and heard in the first in- 
 stance either before the Lord Chancellor himself, 
 the Master of the Rolls, or Vice Chancellor, the 
 courts of these judges may for most practical pur- 
 poses be considered as possessed of independent 
 and concurrent jurisdiction. If, however, a greater 
 number of causes are set down before the Chan- 
 cellor than he is able to dispatch, he is empowered 
 by the 53 Geo. III. c. 24. which created the office 
 of Vice Chancellor, to transfer from himself to the 
 Vice Chancellor the hearing of all causes, matters, 
 and things, which in his discretion he may see 
 expedient. He has not the same power over the 
 Master of the Rolls, but may require that judge, 
 as well as the Vice Chancellor, to preside for him, 
 when absent from indisposition or any avocation 
 incidental to his other duties. The Master of the 
 Rolls is superior in point of rank to the Vice Chan- 
 cellor, but no official connexion has been esta- 
 blished between them. Each of these three judges 
 may, if he thinks proper, rehear a cause which he 
 has already heard, upon an application being made 
 to him for that purpose. This rehearing is a pro- 
 ceeding familiar to the court of Chancery, and 
 which, as it has been hitherto moderately used, it 
 would be unadvi sable to abolish. When a cause 
 has been finally disposed of either upon hearing 
 or rehearing in any of the three courts in Chan- 
 cery, a dissatisfied party is always permitted to 
 appeal ; but the court before which the appeal is 
 then brought depends upon the court in which
 
 32 ON THE PRESENT STATE OF THE 
 
 the hearing or rehearing has taken place. If it 
 has been before the Chancellor in his own court, 
 the appeal must be made directly to the House 
 of Lords ; but if it has been before the Master 
 of the Rolls or Vice Chancellor, an appeal may be 
 made either directly to the House of Lords after 
 receiving the Chancellor's signature, which is ne- 
 cessary in point of form, as every decree enrolled 
 in Chancery is still supposed to be his ;* or first 
 to the Lord Chancellor sitting in his own court, 
 from whom, as well as in the former instance, an 
 appeal lies to the House of Lords afterwards. This 
 appeal from the Master of the Rolls and Vice 
 Chancellor to the Lord Chancellor sitting in his 
 own court, considering that there is also a sub- 
 sequent appeal from the Chancellor sitting in his 
 own court to the same Chancellor sitting as Pre- 
 sident of the House of Lords, is of extremely 
 questionable utility. The reason of it evidently 
 is, that any error which has been committed by 
 the Master of the Rolls or Vice Chancellor may 
 be more cheaply and expeditiously rectified, than 
 by an appeal to the House of Lords as the court 
 of ultimate resort. In this respect there is no 
 doubt it does considerable good, but the difficulty 
 is, whether in other respects it is not productive 
 of infinitely greater harm. The history of judicial 
 establishments in every country shews, that the 
 love of appealing invariably increases with the 
 
 * Discourse of the Judicial Authority of the Master of the 
 Rolls, p. 122, ascribed to Sir Joseph Jekyll. The Legal Judica- 
 ture in Chancery stated, p. 45.
 
 CIVIL LAW OF ENGLAND. 33 
 
 multiplication of the stages of appeal, whether there 
 is any just cause for appeal or not. The conse- 
 quence is, that the care which is bestowed in se- 
 lecting judges for those courts from which an easy 
 appeal lies, and the labour and anxiety of the 
 judges who are selected in forming their opinions, 
 is diminished in exact proportion to the diminu- 
 tion of the weight which is attached to them in 
 public estimation. The Lords' Committee have 
 accordingly suggested* that an appeal from the 
 Master of the Rolls or Vice-Chancellor to the 
 Lord Chancellor might in certain cases be advan- 
 tageously discontinued. The more the subject is 
 examined, it will probably become the more ap- 
 parent that it would be expedient to abolish it 
 altogether. As long as such power of appealing 
 continues, one of two consequences must happen. 
 Appeals will either be rare or frequent. If they 
 are rare, they will only occur in cases of great 
 difficulty and moment, which might be decided 
 by the Chancellor in the House of Lords, with 
 the assistance of the peers who might be in at- 
 tendance, as easily and expeditiously, and at as 
 little cost to the parties, as in the Court - of Chan- 
 cery. If they are frequent, the inferior court can 
 give little assistance to the superior in the dispatch 
 of business ; and as an ultimate appeal still lies 
 from the Chancellor in the Court of Chancery to 
 the Chancellor in the House of Lords, as well as 
 to the Chancellor in the Court of Chancery from 
 
 * Report on the Appellate Jurisdiction of the House of Lords, 
 p. 7. 
 
 D
 
 34 ON THE PRESENT STATE OF THE 
 
 the Master of the Rolls and Vice- Chancellor, the 
 chief effect of this arrangement is, that it creates 
 two steps of appeal instead of one, which every 
 one practically acquainted with legal business 
 knows to be more wasting and oppressive to the 
 suitor than can readily be imagined. Even if it 
 should be conceded to be right, that there should 
 be an appeal from the Master of the Rolls and 
 Vice-Chancellor, first to one jurisdiction and then 
 from that to another, the very notion of an ap- 
 peal implies th^at the first appeal ought to be de- 
 cided by a different person from him who decides 
 the second. But here the first appeal is to the 
 Lord Chancellor sitting alone in Chancery, and 
 the second to the same Lord Chancellor presiding 
 in the House of Lords, where, though he sits only 
 as an individual peer, it is universally known that 
 he does and must of necessity exercise a prepon- 
 derating influence, or he will soon cease to pre- 
 side at all. It is no defence of these successive 
 appeals, to allege, that where the Chancellor has 
 pronounced a decision in his own court in Chan- 
 cery, in an appeal from the Master of the Rolls or 
 Vice-Chancellor, it will seldom happen that the 
 same cause will again be brought before him by 
 appeal in the House of Lords. No part of judicial 
 procedure ought to depend on such contingencies. 
 There is not a suitor in the court of Chancery who 
 may not now be dragged through every stage of 
 these successive appeals by a wealthy or vindic- 
 tive adversary ; some of them will, and none of 
 them ought, to be subject to such a visitation. No
 
 CIVIL LAW OF ENGLAND. 35 
 
 man should have it in his power to expose another 
 to two appeals, either the first or last of which 
 appear to be so completely nugatory. They have 
 sometimes been denied to be nugatory, and it has 
 been insisted that if a cause should come upon 
 appeal before the Lord Chancellor in the House 
 of Lords, which he has decided originally either 
 in his own court in Chancery, or upon appeal from 
 the Master of the Rolls or Vice-Chancellor, he 
 will be found to examine it with as laborious and 
 unbiassed consideration as if it had been brought 
 before him there in the first instance. That his 
 consideration will be laborious is indisputable ; 
 that it will be altogether unbiassed may be fairly 
 questioned. No human mind is always exempt 
 from bias of some sort or other, and perhaps no 
 occasion could be named on which its influence is 
 so secret and irresistible as when a judge reviews 
 his own solemn judgment. But supposing the 
 Chancellor sitting as a judge in the House of Lords 
 to be as unbiassed as could be desired, the objec- 
 tion which has been urged against the present 
 course of appeal remains undiminished. When 
 a judge rehears a cause in which he has made a 
 decree, the rehearing is a sort of appeal which 
 it may be useful to allow, in order to correct any 
 error which from inadvertence or want of informa- 
 tion may occasionally be committed. But though 
 this may be denominated an appeal, it in fact 
 amounts to no more than a revision by the court 
 of its own order. There can be no change of 
 the court, and except by death or removal no 
 
 D2
 
 36 ON THE PRESENT STATE OF THE 
 
 change of the judges. But an appeal from one 
 court to another is a proceeding of a totally 
 different nature. It necessarily implies that the 
 court to which the appeal lies, is of a superior 
 order, and, what is of far more importance, that 
 those who are the efficient judges in it should 
 either individually or collectively be presumed 
 to possess superior attainments. In an appeal 
 from the Chancellor to the House of Lords, the 
 second of these requisites is obviously want- 
 ing. The judge who decided the appeal in the 
 first court is the same who decides it in the se- 
 cond, without his authority being entitled to the 
 smallest additional respect, except that which he 
 derives from the dignity of the house in which he 
 is seated. The reconsideration which the Chan- 
 cellor is willing to give, is precisely that which 
 appellants are anxious to avoid, and it will be 
 difficult to find one among them who submit to it 
 without reluctance. Though this double appeal 
 to the Chancellor has not hitherto been made the 
 subject of serious complaint, that circumstance 
 is no proof of the propriety of its continuance. 
 What was expedient formerly may have become 
 inexpedient now, or that which is inexpedient 
 now may have been inexpedient always, though 
 its inexpediency may have only lately been de- 
 tected. All our institutions are more closely 
 scrutinised than they used to be, and the deter- 
 mination which is evinced to elicit from them the 
 whole good or evil to which they can be made 
 subservient, causes their merits and dements to
 
 CIVIL LAW OF ENGLAND. 37 
 
 be tried with greater accuracy. Should it ap- 
 pear therefore to those who reflect on the subject 
 that there is solid ground for the objections which 
 have now been urged against an appeal to the 
 Chancellor in his own court, and another to the 
 House of Lords afterwards, where the same judge 
 exercises a predominant and generally unresisted 
 influence, it is to be hoped that the earliest op- 
 portunity which presents itself will be embraced, 
 of putting an entire stop to appeals from the Mas- 
 ter of the Rolls and Vice-Chancellor to the Chan- 
 cellor in his own court, of which the Lords' Com- 
 mittee have already recommended the partial 
 discontinuance. 
 
 Having said so much on, the court of Chancery 
 in general, it remains to examine the three tribu- 
 nals of which it consists, in each of the respects 
 in which courts of Common Law have already 
 been considered. 
 
 1 . Of the number of Judges of which they con- 
 sist. As the Lord Chancellor, Master of the 
 Rolls, and Vice-Chancellor each sits alone in his 
 own court, it is natural to inquire how it happens 
 that, while each of the supreme Common Law 
 courts has four judges, the three chief courts of 
 Equity, whose duty is at least equally difficult 
 and laborious, should only be supplied with one. 
 This circumstance will be easily accounted for by 
 attending to the manner in which the jurisdiction 
 of the court of Chancery was originally assumed 
 and has subsequently been extended. There 
 was at first no other judge in Equity except the
 
 38 
 
 Chancellor. This officer was created by the 
 later Roman emperors, adopted by the Roman 
 church, and retained in almost every European 
 state into which the Roman empire was at last 
 divided. Though the name remained the same, 
 a material change gradually took place in the du- 
 ties of the office. What those duties necessarily 
 became, either in other countries or our own, is 
 a subject of considerable historical curiosity but 
 little practical use. It may be sufficient generally 
 to mention, that in England as well as other places, 
 they gradually acquired very high rank and au- 
 thority as officers of state, and particularly in all 
 matters connected with the administration of jus- 
 tice. The powers given to the Lord Chancellor 
 Preston, in the time of Richard II. as expressed in 
 his patent granted in 1391, appears to have ex- 
 tended ad omnia et singula qu& ad expeditionem le- 
 gum et bonum regimen terrce necessario requiruntur.* 
 The superintendence here delegated is quite as 
 ample as that which is vested in the Chancellor 
 at the present day, and the exercise of it proba- 
 bly formed in that age his chief judicial occupa- 
 tion. It was not till about fifty years afterwards 
 that bills are found addressed to him sitting as a 
 regular minister of justice in his own court; and 
 as it was probably not anticipated that this new 
 duty would impose upon him any serious burden, 
 he continued to discharge the functions of his of- 
 fice without any public assistance. But though 
 
 * Patent Rolls, 15 Ric. II. pap. 1. quoted in one of the Trea- 
 tises printed among the Law Tracts edited by Mr.Hargrave, p. 309.
 
 CIVIL LAW OF ENGLAND. 39 
 
 the Chancellor has never had any judges sharing 
 his power on the bench as associates, he appears 
 even at a remote period to have had persons 
 placed around him to whose aid he could recur in 
 cases of peculiar intricacy. In an anonymous 
 treatise printed by Mr. Hargrave from Petyt's 
 manuscripts deposited in the library of the Inner 
 Temple,* it is supposed that the Masters in Chan- 
 cery were appointed, among other purposes, to 
 give their advice to the Chancellor in Civil and 
 Canon Law causes as well as those of Common 
 Law, and the high rank and consequence which 
 Masters in Chancery at one time enjoyed, bestow 
 considerable probability upon this conjecture.^ 
 Two of them still attend him daily at the opening 
 of the court, and also take their place with him on 
 the woolsack in the House of Lords. But this 
 attendance has long degenerated into mere for- 
 mality. The Master of the Rolls, who was always 
 acknowledged to be their chief, is the only one 
 among the Twelve Masters with whom the Chan- 
 cellor has for the last 150 years consulted in 
 points of real difficulty. He still occasionally re- 
 sorts to his assistance and that of such of the Com- 
 mon Law judges as he may request to be present 
 at the discussion of questions unusually compli- 
 cated and important ; but he has uniformly taken 
 care to intimate that this step has only proceeded 
 from anxiety to inform his own mind, and not in 
 any degree to guide the judgment he might ulti- 
 
 * Margrave's Law Tracts, p. 298. 
 t Spelman's Glossary, p. 108.
 
 40 ON THE PRESENT STATE OF THE 
 
 mately feel himself bound to deliver. Nothing can 
 be more explicit than the language of Lord Chan- 
 cellor Nottingham in the Duke of Norfolk's case, 
 when he made a decree in direct opposition to 
 the concurring opinions of the Chief Baron and 
 two Chief Justices by whom he was assisted. 
 " What hath been said here at the Bench on 
 " both sides," said he, " has been taken in short 
 " hand and made public. I know the counsel on 
 " both sides hath seen it, or will see and look into 
 " it well, and if they can give me any reasonable 
 " satisfaction that I am in the wrong, I shall easily 
 " recede from it. But upon anything yet offered 
 " I am of the mind I was. As to the learned 
 " judges that assisted me at the hearing, the de- 
 " cree is mine, and the oath that decree is made 
 " upon is mine. Theirs is but learned advice and 
 " opinion. And therefore if they can satisfy my 
 " conscience that they are in the right and I am 
 " not, well and good. If not I must abide by that 
 " decree according to my conscience."* In such 
 an emergency Lord Nottingham still held himself 
 bound by the oath he had taken to maintain a 
 jurisdiction which had then become vastly more 
 critical than when it was first assumed, but which 
 successive Chancellors have now exercised singly 
 for upwards of four hundred years. 
 
 As the judicial business in Equity which was 
 brought before the Chancellor, soon increased 
 so much that he became unable to dispatch the 
 
 * Select Cases in the High Court of Chancery, p. 39-
 
 CIVIL LAW OF ENGLAND. 41 
 
 whole in his own person, it was found necessary 
 to consider upon whom the least important part 
 of it could be devolved ; and as he himself had 
 always sat singly, it was natural to expect that 
 the subsidiary assistance called in, should con- 
 sist of a single judge also. This actually proved 
 to be the case, and the person to whom recourse 
 was almost invariably had on such occasions 
 was the Master of the Rolls, who had always been 
 the chief of the Twelve Masters in Chancery, 
 and seems also to have been the Chancellor's prin- 
 cipal adviser in matters of law, for a considerable 
 antecedent period. Whether the Master of the 
 Rolls sat originally as a judge in Equity in right 
 of his own office, or merely as deputed in each 
 particular instance by the Chancellor, is a subject 
 which has given rise to much controversy and in- 
 vestigation.* The title which he sometimes re- 
 ceived of King's Vice-Chancellor and Vice-Chan- 
 cellor of England ;f the special delegation of 
 power which appears from the Records of the 
 court of Chancery to have been frequently com- 
 mitted to him by the Chancellor ; and the number 
 of special commissions which have been granted 
 to the Master of the Rolls by the crown to hear 
 
 * Discourse of the Judicial Authority of the Master of the 
 Rolls, passim. Ascribed to Sir Joseph Jekyll, Master of the 
 Rolls. The Legal Judicature in Chancery stated, passim. As- 
 cribed sometimes to Master Spiccr, and sometimes to Lord King. 
 
 t Discourse of the Judicial Authority of the Master of the Rolls, 
 p. 23. 
 
 t Legal Judicature in Chancery stated, p. 129 c t seq.
 
 42 ON THE PRESENT STATE OF THE 
 
 causes in the absence of the Chancellor ;* make it 
 most probable that the jurisdiction which he thus 
 exercised as a judge in equity, was at first only a 
 voluntary deputation granted by the Chancellor, 
 which gradually acquired strength from usage, 
 and was at last fully established by the commis- 
 sions which subsequently issued from the crown. 
 Whether this was so or not, it is certain that he 
 did not sit publicly as a judge in Equity, until the 
 press of equitable business before the Chancellor 
 required assistance, and highly probable that he 
 then sat singly, merely in imitation of the judge 
 for whom he acted as a substitute. His juris- 
 diction gradually extended with the accumulation 
 of suits in Equity, until few matters relating to 
 them remained, which could not be heard and 
 determined in the first instance at the Rolls, as 
 well as in the Lord Chancellor's own court. In 
 this manner these two judges, singly in their re- 
 spective Courts, continued to transact the whole 
 matters which arose in Chancery during the lapse 
 of nearly three centuries. 
 
 In 1813 the arrears of business became so great, 
 that the establishment of a third court in Chan- 
 cery became unavoidable. A new judge was 
 created for it with the title of Vice-Chancellor of 
 England, which about two centuries and a half 
 before had been sometimes given to the Master of 
 the Rolls, and whatever difference of opinion pre- 
 vailed in the public mind respecting the necessity 
 
 * Judicial Authority of M. R. p. 86. Judicature in Chancery 
 stated, p. 143.
 
 CIVIL LAW OF ENGLAND. 43 
 
 or expediency of the court itself, there was none 
 about the number of persons of which the court 
 should consist. The country had been so long 
 accustomed to the Chancellor and Master of the 
 Rolls sitting alone in their own courts, that the 
 appointment of one judge to the new court was 
 regarded as a mere matter of course, about which 
 there could be no difficulty or difference of opi- 
 nion. 
 
 Whether it be owing to the fortuitous circum- 
 stances now mentioned or not, that only one judge 
 is to be found in each of the three separate tribu- 
 nals into which the High Court of Chancery is now 
 divided, it is of much greater importance to ascer- 
 tain whether one judge is really better fitted for 
 conducting the business of a court of Equity than 
 any other number of which it might be made to 
 consist. If three or four judges are requisite in a 
 court of Common Law, it has been asked why a 
 single judge should be thought adequate to the 
 administration of a court of Equity, where the 
 questions which arise require perhaps still deeper 
 legal knowledge and investigation. It must be 
 admitted, that the uncontrouled authority pos- 
 sessed by a single judge must necessarily give 
 him a command over suitors and practitioners, 
 which it would be dangerous to communicate to 
 one who is precipitate, ignorant, or vindictive. 
 But the very conspicuousness and responsibility 
 attached to the station of single judges, makes 
 those who choose them extremely careful in their 
 choice, and those who are chosen peculiarly dili-
 
 44 ON THE PRESENT STATE OF THE 
 
 gent and exemplary in the performance of their 
 duty. Owing to this circumstance, the functions 
 of those judges who sit alone have hitherto been 
 discharged in this country with so much ability, 
 that it is exceedingly uncertain whether the addi- 
 tion of two or three colleagues to each would have 
 been attended with any public benefit. Neither 
 the judgments of the four Barons sitting together 
 in Equity in Exchequer, nor those of the three Com- 
 missioners to whom the custody of the Great Seal 
 has been from time to time intrusted in the interval 
 between the resignation of one Chancellor and 
 appointment of another, are at all favourable to the 
 supposition that a plurality of judges in Equity 
 would be preferable to one. It is true the court 
 of Exchequer, from its mixed judicature and other 
 causes, may not be thought a fair specimen of 
 what a court of Equity consisting of several judges 
 is calculated to become ; and it may be alleged 
 that the Commissioners of the Great Seal have 
 hitherto been prevented by the temporary nature 
 of their appointment, from displaying that deci- 
 sion and energy, which they would have exerted, 
 if it had been more permanent. Nothing however 
 connected with these examples, nor any facts 
 which have hitherto been produced, at all favour 
 the supposition that courts of Equity where there 
 is a plurality of judges, are possessed of any 
 advantage over those where there is only one. 
 The judgments given by single judges in the court 
 of Chancery, where complicated points of law and 
 equity have been brought into discussion, have in
 
 CIVIL LAW OF ENGLAND. 45 
 
 general been deemed as sound and elaborate, as 
 those which have been pronounced in any other 
 court where the judges have been more numerous. 
 I am aware that this opinion is contrary to that 
 which is entertained by several writers whose 
 information and reflection intitles them to the 
 greatest respect. Muratori has observed, " quelle 
 " decisioni che vengono da un ? solo giudice, poco 
 " o nulla s'han da credere differenti da i consulti 
 " d'un avvocato. Piu stima da gran lungo meri- 
 " tano quelle, che escono da un corpo di varii 
 " giudici, e tanto piu se giudici di tribunali ec- 
 " celsi, come e la Ruota Romana, e i Senati delle 
 " piu cospicue citta."* This observation would 
 probably not have been made, if Muratori had 
 sufficiently reflected on the weight of business 
 which a single judge of approved capacity and 
 integrity, acting under the inspection of a jealous 
 and enlightened public, is qualified to perform; 
 if he had personally observed the unfeigned and 
 universal deference which may be paid to his 
 authority; and if he had been made acquainted 
 with the severe and unrelaxing application with 
 which he may labour to deserve it. On the qua- 
 lifications of the individual selected the whole 
 merit of a single judge depends. If single judges 
 are destitute of the temper and attainments which 
 are requisite, they must necessarily be more ex- 
 posed to error than if they sat along with others 
 who might correct their precipitation and mis- 
 
 * Diffetti della Giurisprudenza, p. 39-
 
 46 ON THE PRESENT STATE OF THE 
 
 conceptions. But on the other hand if they are 
 really possessed of those rare endowments which 
 in all extended and liberal professions some in- 
 dividuals will almost invariably be found to enjoy, 
 they seem better calculated to compose a court 
 of Equity than any other number. In this coun- 
 try besides, the single equity judges have peculiar 
 facilities for obtaining the opinion of the Common 
 Law judges on points of unusual difficulty, either 
 publicly or by private communication. This sup- 
 plies them with ample extraneous assistance, 
 while they probably discharge the ordinary duty 
 of the court more satisfactorily and expeditiously 
 than if each of them were aided by the counsels 
 of two or three colleagues of attainments equal to 
 his own. It should never be forgotten, that there 
 is a marked difference between the nature of the 
 causes which are brought into courts of Common 
 Law and those which are brought into Equity. 
 At Common Law there is frequently but one point 
 to be decided, never many, and the judges are 
 seldom required to do more than to declare what 
 the law upon one or more of these points is. 
 Where that is the case, both the questions which 
 arise, and the discussions which take place upon 
 them are as unembarrassed as they can possibly 
 be ; and it is exactly on such occasions that a 
 plurality of judges is attended with the greatest 
 good and least inconvenience. But the causes 
 which are most common in Equity are not of this 
 nature. In most of them the parties and points 
 in dispute are numerous, and the rights which
 
 CIVIL LAW OF ENGLAND. 47 
 
 have to be settled spring out of a multitude of 
 deeds and transactions which are always compli- 
 cated and generally inconsistent. Both in ar- 
 ranging the final decree, therefore, and in settling 
 the intermediate orders and references which the 
 substantial justice of the case requires, great 
 latitude must necessarily be left to the judge; 
 much interlocutory conversation takes place be- 
 tween him and the counsel ; and as two people 
 seldom agree respecting the course of inquiry or 
 discussion it would be most expedient in such 
 case to pursue, the learning and discretion of one 
 judge is more likely than the conflicting counsels 
 of several, to conduct the business at the least 
 expense of time and money to that termination 
 which is most reasonable and consistent in itself, 
 and most satisfactory to all parties who are inte- 
 rested in the issue. 
 
 2. The times at which the courts in Chancery 
 sit and the length of their sittings. The Chan- 
 cellor and Vice-Chancellor both sit in Westminster 
 Hall, as well as the CommonLaw judges, during the 
 whole of the four law-terms, from ten in the morn- 
 ing till two, three, or four o'clock, according to the 
 press of business which may be before them. The 
 various official duties which the Chancellor has to 
 perform, sometimes oblige him to rise consider- 
 ably earlier than the Vice-Chancellor. Before 
 and after each of the law-terms, both of these 
 judges sit in Lincoln's Inn nearly twice as many 
 days as they sit in Westminster Hall during their 
 continuance, and their sittings are then also ra-
 
 48 ON THE PRESENT STATE OF THE 
 
 ther longer. As they go no circuits they proba- 
 bly sit in court near 200 days every year, and five 
 hours may be near the average length of each 
 sitting. 
 
 These public sittings however are not the only 
 occasions on which the Chancellor and Master of 
 the Rolls are empowered to act in their judicial 
 character. " The Chancery," it has been ob- 
 served, " is always open as to issuing of writs and 
 " equitable proceedings ; and wherever the Chan- 
 " cellor or Master of the Rolls is, acts of court 
 " may be done by either of them."* It is after- 
 wards added in the same book, " The Master of 
 " the Rolls doth all acts of judicial power when 
 " and wheresoever he in his discretion thinks 
 " fit as to the making of decrees,"! and instances 
 are given of Sir John Trevor and Sir Harbottle 
 Grimstone, when Masters of the Rolls, having 
 ordered parties to attend them, the one at his 
 house at Knightsbridge and the other at his seat 
 at Gorhambury near St. Albans.f Whether the 
 Vice-Chancellor possesses this power in conjunc- 
 tion with the Chancellor and Master of the Rolls 
 may be doubted. He has never yet exercised it, 
 and the Act of Parliament by which his office was 
 created is silent on the subject; but the Chan- 
 cellor and Master of the Rolls continue to use it 
 to the present day, as often as any exigency arises 
 which requires its exercise. 
 
 * Discourse of Judicial Authority of Master of the Rolls, p. $6. 
 t Ibid. p. 104.
 
 CIVIL LAW OF ENGLAND. 49 
 
 As the judicial functions of the Master of the 
 Rolls were originally confined to the dispatch of 
 the less important part of the business which 
 came before the Chancellor, he began and has 
 since continued to sit in a hall in the Rolls 
 House in Chancery Lane, and in order to suit the 
 convenience of the bar, his sittings have either 
 been held on different days from those of the 
 Chancellor's and Vice-Chancellor's, or have begun 
 after theirs have ended. During the four law 
 terms he sits three or four nights a week from 
 six o'clock at night till nine or ten, and some- 
 times considerably later. He sits also for a few 
 days after each term during the time the Chan- 
 cellor's and Vice-Chancellor's courts are closed, 
 from ten o'clock in the forenoon till four, provided 
 the business of the court should so long detain 
 him. When the Chancellor and Vice-Chancellor 
 resume their forenoon sittings after term his alter- 
 nate evening sittings are resumed also, and con- 
 tinued with them. The whole sittings of the 
 Master of the Rolls may nearly amount to a 
 hundred and twenty in the course of a year, and 
 their length may extend to four hours each on an 
 average. 
 
 It is not easy to understand why the constitu- 
 tion of the Rolls Court should still remain the 
 same, when the state of things to which it was 
 originally adapted, has undergone an almost total 
 alteration. This observation is made without the 
 least desire either to impair its credit or under- 
 value its utility. It is not forgotten, that it was
 
 50 ON THE PRESENT STATE OF THE 
 
 in that place, at the late hours at which its sittings 
 are still held, and in a confined crowded heated 
 room, that such judges as Sir Joseph Jekyll, Sir 
 John Strange, Lord Kenyon, Lord Alvanley, 
 and Sir William Grant, enlarged and strength- 
 ened the foundations of Equity, and even in Eng- 
 land shed additional lustre on the administration 
 of justice. To the last-mentioned individual in 
 particular, no adventitious honour which might 
 have been conferred on his declining age, could 
 have proved an adequate return for the distin- 
 guished service he has done his country. He has 
 received a recompense better suited to the sim- 
 plicity, dignity, and disinterestedness of his cha- 
 racter, in the reverence which accompanies him 
 wherever he is seen, and the burst of admiration 
 which succeeds his name whenever it is mention- 
 ed. His total disregard of every art to captivate 
 public favour or attention ; his lofty but unpre- 
 tending integrity and independence; the singu- 
 larly collected and unprepossessed mind he 
 brought to the examination of every subject; the 
 silent and unremitting attention which he paid to 
 every argument which was urged before him; the 
 admirable medium he observed between dilatori- 
 ness and precipitation in the dispatch of business; 
 and the clearness, strength, and comprehensive- 
 ness of reasoning by which his judgments were 
 supported; all conspired to invest his judicial 
 conduct and demeanour with that air of severe and 
 commanding intelligence which none who have 
 ever seen it, can either forget or hope to see again. 
 But it was not because he and his predecessors sat
 
 CIVIL LAW OF ENGLAND. 51 
 
 in such a place and at such an hour, that their 
 names will be remembered, and their judgments 
 held in honour. They could not have done less, 
 and probably would have done more, if their 
 sittings had been held at more regular and sea- 
 sonable times, and in a place better fitted to the 
 dignity of their station, and multiplicity and im- 
 portance of the business that is brought before 
 them. If it should be urged that as the two 
 Houses of Parliament have long been accustomed 
 to meet at night, there is no reason why a court 
 of justice should not meet at night also, it may 
 easily be replied, that the one circumstance affords 
 no justification of the other. The Houses of Par- 
 liament sit in the evening not from choice but 
 necessity, and the confusion and impatience which 
 too often prevails at the conclusion of their deli- 
 berations, will not be contended to afford any re- 
 commendation of the practice. Besides this, the 
 questions which are brought before courts of jus- 
 tice are generally of a more subtle and complicated 
 nature than those which are agitated in legislative 
 assemblies, and are most satisfactorily examined 
 and determined when the state of the mind and 
 body is most composed and vigorous. There can 
 be no doubt that this usually happens during the 
 earlier portions of the day, and it is that season 
 accordingly which in all ages and countries has 
 by the common consent of mankind been selected 
 for the dispensation of justice. The appearance 
 of the evening sun in the horizon was in early 
 times regarded as the latest hour at which
 
 52 ON THE PRESENT STATE OF THE 
 
 a judge should be permitted to remain upon the 
 
 judgment seat. 'O )'Ao? im ruv ofuv y If^Km uptx. l<nu* 
 
 is the beautiful and simple language in which the 
 Athenian law on this subject is expressed ; and 
 so fully were the Romans afterwards convinced 
 of its expedience, that it forms one of the chief 
 general ordinances promulgated in the 12 Tables 
 respecting the administration of justice. " Ante 
 " meridiem causam conscito, cum perorant ambo 
 " prsesentes. Post meridiem prassenti 1 item ad- 
 " dicito. Si ambo praesentes, sol occasus suprema 
 " tempestas esto."t If the sittings of the Rolls 
 Court were now to be appointed for the first time, 
 there probably is not a single individual to be 
 found, who would recommend them to take place 
 at the intervals of time and hours of the day at 
 which they are now held. Why then should 
 they not be altered ? If the convenience of the 
 public required them to be fixed in the evening at 
 one time, why should they not be changed to the 
 forenoon at another if the same convenience re- 
 quires it ? If the causes which are entered for 
 hearing before an efficient Master of the Rolls are 
 twice as numerous and weighty as they were 
 fifty years ago, and if the demands upon the 
 other judges in Chancery are twice as great as 
 they were at the same period, it is difficult to 
 conceive why the Master of the Rolls should not 
 sit in the forenoon on the same days and at the 
 same hours as the Chancellor and Vice-Chancellor, 
 and bear his fair proportion of the additional 
 
 * Pctiri Leges Atticae, lib. 4. tit.-4. 
 t Gotholrcdi Frag. 12 Tab. p.6"8.
 
 CIVIL LAW OF ENGLAND. 53 
 
 duty which the judges in Equity have had im- 
 posed upon them. No objection has ever been 
 made to the adoption of this proposal, except that 
 it would alter the situation and duties of a well 
 known officer, and might prevent the practice of 
 a portion of the bar from being quite so lucrative 
 as it otherwise would. Neither of them is de- 
 serving of much consideration. It is undoubtedly 
 true, that no officer either judicial or political, ought 
 to have his character or duties altered unless it 
 can be clearly shewn that the exigencies of the 
 state require it. In this instance the existing 
 exigency will not be denied; the projected change 
 is liable to as little inconvenience and danger, as 
 can ever attach to a measure of a similar nature; 
 and to insist that the Master of the Rolls should 
 sit only two days instead of three, and at six at 
 night instead of ten in the morning, for no other 
 reason than because he has hitherto been accus- 
 tomed to do so, would evince a disregard of public 
 opinion and perverse hostility to rational improve- 
 ment which no person in the present day will 
 be forward to exhibit. The effect which such a 
 measure would have upon the bar is entitled to 
 still less attention. If the interests of the country 
 and the bar can be consulted at the same time, 
 they ought in every case to be so. But the in- 
 stant they become incompatible, there can be no 
 room for hesitation which of them ought to yield. 
 It is the duty of the bar to accommodate itself to 
 the circumstances of the country, not that of the 
 country to accommodate itself to the bar, and 
 both the public and the bar will eventually sustain
 
 54 ON THE PRESENT STATE OF THE 
 
 equal injury in every instance where this principle 
 is either counteracted or forgotten. 
 
 It is at the same time true, that if the Master of 
 the Rolls were appointed to sit hereafter forty or 
 fifty days longer every year than now, he ought to 
 be released from his attendance on appeals before 
 the Privy Council. This could hardly be re- 
 garded as a serious obstacle to any new modifica- 
 tion of his own court. The part which he ought 
 to take in the proceedings of the Privy Council as 
 a court of justice has never been sufficiently de- 
 fined. His presence there at all is entirely op- 
 tional, and he himself hardly knows how much 
 attendance he ought voluntarily to give, nor how 
 much his Majesty's ministers have a right to ex- 
 pect. The continuance of such an arrangement 
 does not seem to be on any account desirable. 
 It would probably be more beneficial both for the 
 country and its colonies, that the Privy Council 
 should be supplied with one or more permanent 
 judges for the dispatch of its exclusive business; 
 and that the Master of the Rolls, as well as the 
 other judges who have hitherto lent it their 06- 
 casional gratuitous assistance, should each con- 
 fine himself in future to the discharge of the 
 duties which belong to his own court and office. 
 
 3. The actions, or suits as they are generally 
 termed, that may be brought before each of 
 the three tribunals now established in Chancery. 
 It has been already noticed, that except in 
 matters which relate to lunatics, all of which 
 are heard by the Chancellor himself, there are
 
 CIVIL LAW OF ENGLAND. 55 
 
 few questions in Equity which may not be set 
 down to be heard before the Chancellor, Master of 
 the Rolls, or Vice-Chancellor, at the pleasure of 
 the parties. When this has been done, however, 
 the Chancellor may at his discretion desire the 
 Vice-Chancellor to hear any matter which has been 
 set down before himself for the express purpose of 
 having it determined by himself in his own court. 
 This regulation appears to be- open to several 
 strong objections. It is not likely to be satisfac- 
 tory to the parties. In the constitution of courts 
 of Law or Equity, the natural course seems to be, 
 to take every possible precaution that parties should 
 not have the power of entering a greater number 
 or variety of causes before any one judge than he 
 is likely to be able to dispatch. But if they are 
 allowed and have actually exercised a choice, that 
 circumstance alone, if there were no other, must 
 almost of necessity make them more dissatisfied 
 with the judge before whom they are obliged to 
 go, than they would have been if they had gone 
 before him voluntarily. When one judge has the 
 power of desiring another to hear and determine, 
 it is also attended with this other obvious dis- - 
 advantage, that it diminishes the dignity and 
 efficiency which the inferior court would other- 
 wise enjoy. Nothing tends more to raise a court 
 of justice in the eyes of the public and the 
 suitors, than to make it completely independent 
 of every other as long as it acts incorruptly and 
 does not exceed the bounds of its own jurisdiction, 
 and nothing more effectually degrades it than to 
 subject it to the most distant species of authority
 
 56 ON THE PRESENT STATE OF THE 
 
 or controul. This holds true as an universal 
 principle, and its truth becomes the more appa-r 
 rent, the higher the degree of the courts may 
 be where this subordination is perceptible. The 
 Vice-Chancellor is a judge upon whom far too 
 high a rank and title has been conferred, to 
 make it expedient for him to receive any inti- 
 mation from the Chancellor when and what causes 
 should be heard before him, and one of the great- 
 est improvements which that office could receive, 
 would be to make it as independent of the per- 
 son holding the great seal, as the Master of the 
 Rolls now is and has immemorially been. 
 
 4. The persons that practise in them. Nothing 
 occurs to be here noticed, which has not already 
 been mentioned under this head when speaking 
 of the courts of Common Law. King's Counsel 
 and those who have patents of precedence have 
 pre-audience there as they have every where else, 
 but all barristers may practise in the three courts 
 in Chancery who have been called to the bar, and 
 all solicitors who have been regularly admitted. 
 
 5. Their inferior officers. The only subordi- 
 nate officers attached to the court of Chancery to 
 whom it seems necessary to advert, are the Mas- 
 ters, Six Clerks, Registers, Cursitors, and Com- 
 missioners in Bankruptcy. 
 
 Masters in Chancery are of very high rank and 
 dignity, and the Master of the Rolls still belongs 
 to their number, though his connexion with them 
 has for more than two centuries been merely 
 nominal. In the treatise Of the Masters of the 
 Chancerie, printed in Hargrave's Law Tracts,
 
 CJVIL LAW OF ENGLAND. 57 
 
 which that gentleman presumes to be the fullest 
 which had then been published on the subject, the 
 author proves from unquestionable records, that 
 they were among the officers of the Chancery 
 who were " antientlie kept together either in the 
 " king's howse, or in some spetiall hostell ap- 
 " pointed for them, where they had lodging and 
 " dyet allowed them. Besides their lodging and 
 " dyet, they had also robes of the king in spetie, 
 " not allowance in money for them, and that by 
 " delivery of the Lord Chancellor. It seemeth 
 " moreover that they had allowance for horse 
 " meate by this record of 12 Edw. III. defeno li- 
 " tera et avena pro hospitio cancellaricz providendis : 
 " but it is plaien that they had allowance of bote- 
 " hire, and that in the best manner."* It appears 
 from the same account, that their chief employment 
 then consisted in composing and examining writs 
 for the furtherance of justice; in the examination 
 of witnesses in the country by commission; in 
 receiving general powers of attorney ; in assist- 
 ing the Chancellor at sealing times ; and in at- 
 tending the Higher House of Parliament without 
 writ as being a part of that court, where they had 
 a seat with the Chancellor on the woolsack, and 
 were called upon to inform the* house in matters 
 of law, as the Common Law judges are at present. 
 From the time when this treatise was written 
 down to the present time, they have been involved 
 in a greater number of struggles and discussions 
 both about their rights and the reasonableness of 
 their emoluments than almost any other servants of 
 
 * Hargrave's Law Tracts, pp. 315, 3l6.
 
 58 ON THE PRESENT STATE OF THE 
 
 the public. In neither of these respects do they 
 appear to have been particularly successful. Their 
 rank and consequence sustained a serious diminu- 
 tion in the time of Queen Elizabeth, in consequence 
 of the following unhappy accident. " Doctor 
 " Barkley, a Master of the Chancerie, in the 18th 
 " of the quene, sitting in the Parliament Howse, as 
 " the manner is, upon occasion of speche amongst 
 " the Lords, of certaine officers to have certaine 
 " priviledges, without askinge leave got up, and 
 " entred into a speeche of desiringe, that the 
 " Masters of the Chancerie might alsoe be com- 
 " prised in the sayed priviledge then one foote ; 
 " which request came soe unseasonably, and was 
 " so inconsideratelie propounded by the said 
 " doctor, as the lords in generall tooke offence 
 " thereat; and amongest the rest, some of great 
 " authoritie sayed, that whilst the quene's learned 
 " counsell were silent, it were great presumption 
 " in him, beinge one inferior to them to be soe 
 " busie. Soe as upon this the next day, the ser- 
 " jant, atturnie, and sollicitor, tooke place above 
 " the Masters of the chauncerie there which before 
 " time had never bene donne ; and ever sithence, 
 " not onelie they, but serjants at the lawe alsoe, 
 " doe it generallie at all publique meetings, upon 
 " this reason, that they tooke place before the 
 " attornie and sollicitor. The which point as 
 " against the attornie and sollicitor, which pal- 
 " pablie every daie raseth higher then other, it is 
 " not perchance fitt to dispute ; soe as touchinge 
 " serjants at lawe, to my understanding, there are 
 " many reasons, whie they should not have pre-
 
 CIVIL LAW OF ENGLAND. 59 
 
 " cedence. But what congruitie there is, that 
 " the Master of the Chauncerie, whoe by the func- 
 " tion of his place sitteth one the bench covered 
 " coram domino rege, should out of that place come 
 " behind the serjant of the coiffe, who in distinc- 
 " tion from other of the king's serjants was called 
 " Serjeant counter, and by the function of his 
 " place standeth likewise uncovered not onelie in 
 " the court of Chauncerie before the Lord Chan- 
 " cellor, but in other places alsoe when they 
 " come to debate matters for their clients ; let this 
 " judge." Since that time the House has neither 
 been pleased to restore their place nor speech ; 
 and they are now employed by it for scarcely any 
 other purpose than to increase its state, and 
 carry messages to the House of Commons. Their 
 struggle with the serjeants-at-law about prece- 
 dence was renewed on occasion of the procession of 
 James I. from theTower through the city of London 
 at the time of his accession. The description then 
 given of their functions by one of their own body is 
 as follows: " A Master of the Chancery is the 
 " King's Majesty's immediate sworn servant, re- 
 " ceiving from him robes, or satisfaction for robes, 
 " twice a year, and antiently divers others allow- 
 " ances for his skill and learning, appointed to be 
 " an assessor or assistant to the chiefest temporal 
 " officer of the realm, the Lord Chancellor, sitting 
 " by him covered on the same bench in the Chan- 
 " eery, one of the highest courts of this realm, 
 " to deliver to him his opinion and advice in the 
 " judicial causes in the same court, and to help 
 " him in the speedy expediting of them, upon re-
 
 60 ON THE PRESENT STATE OF THE 
 
 " ferences reporting the state of divers matters 
 " concerning the suits there, and to take oaths, 
 " recognizances* and acknowledgments of deeds, 
 " and to do divers other judicial acts as well in 
 " court as any where else within the realm, the 
 " same to be recorded as done before the king 
 " himself; and also to look that no fraud be done 
 ' to the king's seal, and lawfully to counsel the 
 " king in things that touch the king when he 
 " shall be thereunto required, and to keep secret 
 " the counsel which he knoweth touching the 
 " king ; and antiently to prove and compact all 
 " manner of writs, patents, and whatsoever was 
 " to pass the great seal."* 
 
 The latest and best account of the present ac- 
 tual duties of a Master in Chancery is given in 
 the first Report of the Commissioners appointed 
 by Parliament, in 1809, to inquire into the 
 duties and emoluments of officers of courts of 
 justice, and is in the following words : " To ex- 
 " amine into alleged impertinence or scandal in 
 " any bill or answer, and into the sufficiency of 
 " any answer or examination. To settle interro- 
 " gatories for the examination of parties. To take 
 " the accounts of executors, administrators, trus- 
 " tees and guardians, and others. To inquire and 
 " decide in claims of creditors, legatees, and 
 " next of kin. To appoint receivers of personal 
 " estate, and rents of real estate, fix their salaries, 
 " and examine their accounts; to inquire as to 
 
 * Legal Judicature in Chancery stated, p. 71-
 
 CIVIL LAW OF ENGLAND. 61 
 
 " repairs' to be done, felling of timber, and 
 " granting leases. To sell estates, and approve 
 " of the investment of trust money in the purchase 
 " of estates, and for this purpose to inquire into 
 " their value, to investigate the title to them, and 
 " settle the conveyance. To inquire for the heirs 
 " and next of kin of persons dying intestate. To 
 " appoint guardians of the persons and estates 
 " of infants, and to allow proper sums for their 
 *' maintenance and education; to appoint com- 
 " mittees of the persons and estates of lunatics, 
 " and to examine the accounts of such commit- 
 " tees. To tax the costs of proceedings in any 
 " suit, or under the orders of the court ; and also 
 " the bills of costs of solicitors delivered to their 
 " clients, and referred for taxation under 2 Geo. 
 " II. c. 23 ; and also the bills of costs of solicitors 
 " for business done in bankruptcy pursuant to 
 " 5 G. II. cap. 30. To inquire whether infants 
 " are trustees or mortgagees within 7 Anne c. 19. 
 "To inquire under 39 G. III. c. 56. into the 
 " interested parties in money subject to be laid 
 " out in the purchase of land. 
 
 " In general, there is no question of law or 
 " equity, or disputed fact, which a Master may 
 " not have occasion to decide, or respecting 
 " which he may not be called upon to report his 
 " opinion to the court." (p. 10.) 
 
 The last paragraph of this account of the duties 
 of Masters in Chancery ought either not to have 
 been introduced at all, or it ought in fairness to 
 have been coupled with that explanation which 
 such a statement rendered necessary. Though
 
 62 ON THE PRESENT STATE OF THE 
 
 what is there alleged be literally true, yet it is of 
 that indefinite and sweeping nature, which in the 
 minds of many Members of Parliament for whose 
 information this report was printed, is calculated 
 to produce an impression substantially erroneous. 
 Every person who is conversant with the adminis- 
 tration of justice knows, that there is scarcely any 
 legal or equitable jurisdiction however humble, 
 before which questions of the greatest difficulty 
 may not be, and sometimes are, unexpectedly 
 brought. It was very material therefore in stating 
 the duties and labours of a Master in Chancery 
 to have had an estimate of the number of really 
 difficult questions in law and equity, which upon 
 an average may arise before each Master in the 
 course of a year, and the nature of those which 
 are of most frequent occurrence. This observation 
 is not intended to detract from the merit and 
 respectability to which Masters in Chancery are 
 justly entitled, but merely as an illustration of the 
 studious and systematic manner in which they and 
 their friends have represented the duties of the 
 office as more arduous than they really are, and 
 requiring greater legal attainments than the ma- 
 jority of those who have filled them, have ever 
 been supposed to possess. 
 
 Masters in Chancery have not been more 
 vigilant in support of their rank, than in defence 
 of their emoluments. As early as the reign of 
 Richard II. a complaint was made against them, 
 " that they were over fatt both in bodie and 
 " purse, and over well furred in their benefices, 
 *' and put the keinge to very great cost more
 
 CIVIL LAW OF ENGLAND. 63 
 
 " then needed." Whether any redress was ob- 
 tained in consequence of this remonstrance or not, 
 the grievance was again felt and noticed not 
 long afterwards. The author of the treatise on 
 the Masters in the Chancerie* laments indeed that 
 " from this envie into what a state of pittie they 
 " are nowe fallen appereth but even overmuch," 
 yet it is stated by Norburie, in the beginning of the 
 reign of James I. " that nothing was more com- 
 " plained of, or more troublesome to the house, 
 " than the fees at that time taken by the Masters 
 " of the Chancery, which though the said Masters 
 " did not exact of the clients as a duty, but took 
 " what they freely and voluntarily gave them, 
 " yet it was held a grievance to the common- 
 " wealth not to be endured, and thereupon an act 
 " (1 J. 1.) was made, that no man to whom any 
 " cause was referred out of any of his Majesty's 
 " courts of justice, should under a great penalty 
 " take any thing for his certificate or report, di- 
 " rectly or indirectly."! In the 18th of Ja. I. 
 the discussion about the court of Chancery and 
 particularly about the claims and fees of the Mas- 
 ters was renewed, in consequence of the corrupt 
 practices of Lord Chancellor Bacon. The result 
 was, that various measures were begun for the 
 reform and regulation of Chancery, after which a 
 bill for adding two assistant judges to the court, 
 and lessening the expense of its proceedings was 
 
 * Hargrave's Law Tracts, p. 314. 
 
 f The Abuses and Remedies of Chancery, by Gco. Norburie. 
 Printed in Hargrave's Law Tracts, p. 428.
 
 64 ON THE PRESENT STATE OF THE 
 
 brought in and read a first time, but the parlia- 
 ment was dissolved before it received the sanction 
 of the legislature. They have however not only 
 retained possession of the emoluments then com- 
 plained of, but by force of usage, have since 
 acquired a right to others, which are felt at the 
 present day to be both oppressive and unnecessary. 
 The chief of these arise from the profit made by 
 them on copies of proceedings furnished by them 
 to the parties, and from the fees paid on taking 
 out warrants for attendances before them. The 
 abuse complained of with respect to these warrants 
 does not consist in the amount of the fee paid on 
 each, but in their unnecessary multiplication. 
 Until the third or peremptory warrant the party 
 served with it neither does nor is expected to 
 appear ; and as these three warrants only entitle 
 the parties to an audience of the Master for a single 
 hour, except those cases where he is directed to 
 proceed de die in diem, so many hours are required 
 for bringing an inquiry of any difficulty to a ter- 
 mination, that the delay and expense occasioned 
 by these numberless warrants become heavy and 
 vexatious. The copy-money is a source of revenue 
 still more obnoxious. As the Master claims the 
 right of furnishing parties with all copies of papers 
 which are required, his clerk gets a law-stationer 
 to furnish these copies at a certain rate per sheet, 
 for which the suitor is charged three times as much 
 by the Master, and the difference between the 
 
 * Com. Journal for 1620 and 1621, printed in 1?66.
 
 CIVIL LAW OF ENGLAND. 65 
 
 price paid and exacted, the Master and his clerk 
 share in certain proportions between them. The 
 consequence of this is, that the private emolu- 
 ment of the Masters and their clerks is obviously 
 promoted by every increase which takes place 
 both in the length and number of the copies of 
 papers and proceedings which suitors are obliged 
 to take ; and though many Masters are known to 
 prefer their duty to every other consideration, it 
 is vain to expect that direct and material personal 
 interest should there cease to have that effect which 
 it is known to produce in every other instance. 
 Several Masters have accordingly expressed a 
 desire for the suppression of copy money and 
 some other fees now exacted, and that some other 
 remuneration should be provided in their stead. 
 As yet however no specific measure for that pur- 
 pose has been either sanctioned or proposed by 
 any public authority. Indeed so little tendency 
 has been hitherto manifested in practice, to dimi- 
 nish the fees exacted in the Masters' offices, that 
 some of them were actually increased, by the 
 general orders issued by Lord Erskine on the 26th 
 of February, 1807.* This power of increasing 
 the fees of inferior officers of justice, without 
 having received the sanction of the legislature, 
 though denied by Lord Coke in the most express 
 terms to be legal,f has been invariably exercised 
 by almost every court of justice in the kingdom. 
 
 * Beames's Orders, p. 465. 
 
 t Second Institute, vol. v. p. 533. De Tallagio non concc- 
 dendo.
 
 CO ON THE PRESENT STATE OF THE 
 
 When certain dues were lately claimed by the offi- 
 cers of one of the Common Law courts in West- 
 minster Hall, without being able to bring forward 
 either an act of parliament or immemorial usage 
 in their support, so little confidence was felt in 
 the validity of the right on which, those and 
 perhaps other exactions of a similar nature de- 
 pended, that the 3 Geo. IV. c. 69. was subsequent- 
 ly passed authorising the heads of the several 
 courts to settle the fees of their subordinate offi- 
 cers as they may see occasion. Masters in Chan- 
 cery may almost be said to have had the settle- 
 ment of their own ; for in the parliamentary com- 
 mission appointed in 1815 to inquire into the 
 fees of officers in courts of justice, it happened 
 unaccountably enough that two out of the five 
 commissioners named were themselves Masters in 
 Chancery, and the report made by them in 1816 
 is in every respect so favourable to the Masters, 
 that it might reasonably have been expected to be 
 received by them with unanimous and cordial satis- 
 faction. Four years however after the date of this 
 report, a Master again presented himself as the 
 vindicator of his order, expressing displeasure at 
 any interference with their regulations and pro- 
 ceedings, justifying the reasonableness of their 
 emoluments, and arrogating for them nearly the 
 same rank and consequence which Dr. Barkley did 
 two centuries ago.* Most probably the Masters 
 
 * Letter to the Right Hon. Sir J. Newport respecting the Com- 
 mission to inquire into the Fees and Duties of Officers of Justice^ 
 by V. P.Stratford, Esq. one of the Masters in Chancery. 8vo. 1820.
 
 CIVIL LAW OF ENGLAND. 67 
 
 have derived little advantage from his aid on this 
 occasion. To testify constant and extreme jealousy 
 with respect to matters of right or reputation is one 
 of the surest methods of creating suspicion with re- 
 spect to both, and Masters cannot be classed among 
 the public officers who ought to complain of having 
 been underpaid or undervalued. Each of them 
 receives at present 700 a year of salary; the 
 copy money of some of the offices is said to amount 
 to 6 or 800 a year more; and the sums derived 
 from these sources, together with their other fees, 
 are said to swell the average income of each of the 
 10 Masters in ordinary, exclusive of the Account- 
 ant-General who is one 1 of them, to nearly 3000 
 a year, which is usually conceived to be an ample 
 remuneration for the services they are required 
 to render. By an unprinted act of 13 Charles IL 
 one of the Masters is appointed to attend in 
 the public office on certain specified days from 
 seven o'clock in the morning till twelve at noon, 
 and from two in the afternoon till six.* Now 
 however, the Master in attendance is present 
 only from ten till two, and from six till eight, f 
 In the Masters' private offices attendance is given, 
 except during the four vacations, from ten in the 
 morning till three in the afternoon, and from six to 
 eight in the evening;* but I am not aware that an 
 account is anywhere given of the precise number 
 of days in each year, and average number of hours 
 
 * Harrison's Practice, p. l6. 
 
 t Turner's Practice, p. 7- 
 
 J First Report of the Fee Commissioners, p. .1 1. 
 
 r 2
 
 68 ON THE PRESENT STATE Of THE 
 
 each day, during which the Master actually at* 
 tends in person. It is but justice to the Masters 
 to acknowledge, that many of them are possessed 
 of great legal acquirements and application; while 
 there have been others among them to whom their 
 appointment has been a welcome provision against 
 the instability of fortune and advances of old age. 
 Indeed it is well known that the office is uniformly 
 regarded, taking the duty and salary into consi- 
 deration, as one of the most desirable which the 
 profession of the law affords. Instead of main- 
 taining an unceasing contest about their fees 
 and eminence, it would be more expedient for 
 the Masters to suggest such improvements as 
 might be made in the manner of conducting 
 business before them, and to remove all causes of 
 complaint which spring from the non-observance 
 of express salutary and unrepealed orders of the 
 court to which they belong.* " I would wish," 
 said a Master, who has evinced no ordinary 
 solicitude for the honour of his brethren, " this 
 " course to be holden, that we sought at first 
 " rather to renewe the performinge of our duties 
 " withowte gaine, than over-eager be to pursue 
 " our gaine at the first; and I think God would 
 " blesse our proceedings the better. If thes 
 " thinges were thusse once begoune, then might 
 " we treate and endeavor the restoringe of our 
 " auntient rightes, or recompence for them, with 
 " more credditt and reputation, with more com- 
 " moditie in consultation, and more readines of 
 
 * Beames's Orders, pp. 79 and 81.
 
 CIVIL LAW OF ENGLAND. 69 
 
 " contribution; without which thes things I doubt 
 " will not be effected."* 
 
 The Six Clerks are the next class of officers 
 enumerated, and they are to this day the only 
 attornies for conducting equitable suits which the 
 court of Chancery has recognized. By an order 
 still subsisting, their duty is described to be " to 
 " inform themselves continually of the state and 
 " proceeding of their clients' cause, whereby they 
 " may be able to defend their clients, and to give 
 " an account to the court as the attornies in all. 
 " other courts do, and not to leave the care and 
 " knowledge thereof upon their under clerks."f 
 They receive and file all bills, answers, replica- 
 tions, and other records, in all causes in Equity in 
 Chancery ; sign all office-copies in order to be 
 read in court, as well as certificates; and attend 
 upon the court by two at a time at Westminster 
 in term time, in order to read the pleadings as 
 often as that service may be necessary. The 
 routine business of the public office of the Six 
 Clerks in Chancery-lane is done by their sworn 
 under-clerks, of whom each has usually ten, be- 
 sides two waiting clerks ; all of whom are account- 
 able to their prpper six-clerk for the business they 
 transact. Each six clerk, when absent himself, 
 employs a sworn or waiting clerk of his own di- 
 vision to file the proceedings, and to sign office 
 copies and certificates. J From the First Report of 
 
 * Hargrave's Law Tracts, p. 31 9- 
 
 t Beames's Orders in Chancery, p. 74. 
 
 i Harrison's Chancery Practice, p. 19.
 
 70 ON THE PRESENT STATE OF THE 
 
 the Fee Commissioners, it might be inferred, that 
 the Six Clerks themselves also sign all copies of 
 pleadings made by their sworn and waiting clerks, 
 but this seems to be a mistake which has crept 
 in through inadvertence.* The six clerks have also 
 the care of all records in their office, to which the 
 sworn and waiting clerks have access for six 
 terms without any fee. These records are after- 
 wards sorted and laid up in the record room in 
 bundles, to which indexes or calendars are an- 
 nexed for their more ready inspection. f 
 
 What special or really efficient duties the six 
 clerks personally perform does not appear to be 
 any where distinctly specified. It is said to be 
 expected that each should attend in the six clerks' 
 office in London six months in the year by two 
 months at a time, unless they make a private ar- 
 rangement with some of their coadjutors, but the 
 other six months they are at liberty to spend 
 where they please. The signature which the six 
 clerk or his deputy affixes to an office copy, and 
 from which a considerable part of the profits of 
 his post are derived, leaves him totally irresponsi- 
 ble for any slip or error the copying clerk or law 
 stationer may have committed. This point was 
 determined by the Master of the Rolls in 1820 or 
 1821, upon a petition which a solicitor brought 
 against a six clerk for reimbursement of the ex- 
 penses occasioned by proceedings into which a 
 solicitor alleged he had been led by the omission 
 
 * First Report of the Fee Com. p. 45. f Id. ib.
 
 CIVIL LAW OF ENGLAND. 71 
 
 of a material word in an office copy. It might 
 perhaps have involved the six clerks in too heavy 
 a responsibility to have decided otherwise, but it 
 is obvious that this judgment almost wholly de- 
 stroys that confidence in the exactness of the copy 
 which their name had previously been supposed 
 to guarantee. ' > ! J 
 
 The office of Register of the court of Chancery 
 is executed by four Registers, each of whom is 
 entitled to have two articled clerks. In former 
 times they had only the title of Deputy Regis- 
 ters; but the office of Principal Register, which 
 was held by patent under the crown, has lately 
 been abolished. The Registers sit in turn before 
 the Chancellor, Master of the Rolls, and Vice 
 Chancellor, and take notes of all orders and de- 
 crees pronounced, from which they draw up the 
 orders and decrees which are afterwards entered 
 in the general register kept for that purpose in 
 the Registers' office. They also make and sign 
 copies of decrees, dismissions, and orders, for 
 parties who may require them ; mark exhibits 
 proved viva voce in court ; sign certificates of va- 
 rious kinds ; and perform some other duties of a 
 more special nature.* The emoluments of the 
 Registers arise from the fees which are paid in 
 setting down causes, on furnishing the parties 
 either with minutes or copies of orders or decrees, 
 which they do at so much a sheet, and from a 
 provision of 550 a year which was made for 
 
 * Harrison's Practice, p. 21. First Report of Fee Corn. p. 31.
 
 72 ON THE PRESENT STATE OF THE 
 
 each of the two senior Registers by 49 G. III. 
 c. 69. What may be the amount of the annual 
 income of each of the senior and junior Registers 
 has not been ascertained. The Registers may 
 choose whom they please for their articled clerks, 
 and upon the death or resignation of any of their 
 number, the senior articled clerk succeeds, as a 
 matter of course, without being required to submit 
 to any prescribed course of study or examination. 
 Commissioners in Bankruptcy may also without 
 impropriety be regarded as subordinate officers 
 of the court of Chancery. Their places and du^ 
 ties are strictly speaking altogether of a statutory 
 nature ; but as they are nominated by the chief 
 equitable judge, and as the most part of the busi- 
 ness which comes before them depends more 
 upon the rules of equity than of common law, 
 they are in reality more closely connected with 
 Chancery than some other officers who have air 
 ways been ranked among the members of the 
 court. These Commissioners are 70 in number, 
 besides 4 tarn quam commissioners, each of which 
 74 has, for 15 or 20 years past, derived an income 
 of nearly 300 a year from his office. The 70 
 Commissioners are divided into fourteen lists, 
 each list acting independently of the others, and 
 the whole 74, who have for many years been either 
 barristers or solicitors, are appointed at the sole 
 will and pleasure of the Chancellor. It is singular 
 that the superabundance of judges in bankruptcy 
 should have been so remarkably contrasted with 
 their scarcity in every other department of the
 
 CIVIL LAW OF ENGLAND. 73 
 
 law. Such a host of ministers of justice would 
 excite no small surprise if a bill for their creation 
 were now laid before the legislature for the first 
 time, and it is not easy to comprehend how they 
 have continued for such a length of time without 
 some attempt being made to substitute another 
 jurisdiction better suited to the improvement in 
 commercial law and actual circumstances of so^ 
 ciety. No species of incapacity or misconduct 
 is attributed to the Commissioners, who must 
 be acknowledged to have displayed greater dili- 
 gence and ability than could have reasonably 
 been expected. But there are objections to the 
 system itself which appear to be absolutely insur- 
 mountable. Some of these flow from the nature 
 of the commissionerships themselves. They are 
 of that precise value which makes them an object 
 of desire to many who would neither strive for less 
 or look for more ; their duties do not require con- 
 stant or undivided attention; and as they may be 
 tolerably performed without much study by any 
 individual possessed of ordinary understanding, 
 they constitute a richer and more uncontrouled 
 species of patronage than it is fit for any one ser- 
 vant of the Crown to have at his disposal. The 
 Chancellor lies under no such check in making 
 nominations to them as to the higher posts in the 
 law, and persons are sometimes selected to fill 
 them who would not be trusted in a more respon- 
 sible situation. Another objection to these Com- 
 missioners arises from the incompatibility which 
 usually exists between the duties of their public
 
 74 ON THE PRESENT STATE OF THE 
 
 and private station. Without sitting long enough 
 at any one time in a judicial capacity to forget that 
 they are Counsellors and Solicitors, or possessing 
 sufficient rank to enable them to exert the au- 
 thority of Judges : deciding a point at Guildhall 
 as Commissioners to-day, and perhaps holding 
 a brief in the same bankruptcy in the court of 
 Chancery as Barristers a few days afterwards : 
 the opposite characters they have to support 
 must necessarily create a degree of confusion 
 both in their own minds and those of others, 
 injurious to the consistency and gravity which 
 judges ought to maintain, as well as to that re- 
 spect for their office which the public ought to 
 yield. Besides this, they form beyond all contra- 
 diction the most expensive part of the whole 
 judicial establishment of England. The mere 
 statement that 74 judges sit in bankruptcy alone 
 at an expense of about 23,000 a year, while^S 
 perform the chief part of the business in equity 
 for about 20,000, and the 12 judges who dispatch 
 the whole common-law business of the country 
 cost little more than 50,000, is sufficient to super- 
 sede all argument on the subject. Were two or 
 three courts, composed of three judges each, at a 
 salary from 1,500 to 2,000 a year, with liberty 
 for one judge sitting alone to dispatch the less 
 important business, and a power vested in the 
 whole court of desiring cases on particular points 
 to be laid before the common law or equity 
 judges for their opinion, the bankrupt questions 
 arising in London would perhaps be settled more
 
 CIVIL LAW OF ENGLAND. 75 
 
 Satisfactorily than they are at present : the cost 
 of petitions to the court of Chancery would be 
 in a great measure saved ; as well as the costs of 
 Commissioners in the country, whom it is difficult 
 to prevent, whether they act ill or well, from eat- 
 ing and drinking at the charge of the estate of the 
 bankrupt, in defiance of the prohibitions of the 
 statute. 
 
 Whatever difference of opinion may prevail 
 with respect to the form or authority which it 
 might be proper to give to a separate court of 
 bankruptcy, there can be no doubt that a very 
 prevalent desire exists for its establishment. A 
 considerable number of those whose judgment is 
 entitled to the greatest consideration, seem to 
 conceive such a measure to be essentially neces- 
 sary to give full effect to the provisions contained 
 in the act lately passed for the consolidation and 
 amendment of the bankrupt law.* In what de- 
 gree such a tribunal should be without appeal to 
 the court of Chancery may give rise to considera- 
 ble difference of opinion. This reasoning does 
 not coincide with the opinion delivered by the 
 House of Lords. The Committee has expressed 
 itself to the following effect : "It has been re- 
 " presented to the Committee, that the relief 
 " afforded to the Chancellor by this arrangement 
 " has been very considerable, a great proportion 
 " of the petitions in bankruptcy having been heard 
 " and decided by the Vice-Chancellor in late 
 
 * Eden' Observations on the Bill depending in Parliament, in 
 1824, for the Consolidation and Amendment of the Bankrupt 
 Laws, p. 21.
 
 76 ON THE PRESENT STATE OF THE 
 
 " years; and that though, upon the first institution 
 " of that office, it was not unlikely there should be 
 " many appeals, the number of petitions finally 
 " decided by the Vice-Chancellor has been very 
 " considerable, and it seems probable that the 
 " number of appeals will decrease." " It does 
 " not therefore appear to the Committee to be de- 
 " sirable or necessary to withdraw the jurisdic- 
 " tion in bankruptcy altogether from the Lord 
 " Chancellor, due attention being given to check 
 "frivolous and vexatious appeals. It has how- 
 " ever been represented as worthy of consideration, 
 " whether the practice, which was formerly in use, 
 M of referring to two judges (under acts of parlia- 
 " ment then in force) the hearing of petitions 
 " for bankrupts' certificates might not be usefully 
 " revived."* This judgement of the Committee 
 ought no doubt to be received with all the respect 
 which is due to the experience and capacity of the 
 noble persons by whom the report has been pre- 
 pared and sanctioned. At the same time it ought 
 not to be forgotten, that the Chancellor's senti^ 
 ments can hardly fail to be swayed by the large 
 emoluments which he now derives from proceed- 
 ings in bankruptcy. On all legal subjects his senti- 
 ments have usually great influence in the upper 
 house of parliament. If the fees which the Chan- 
 cellor now receives from bankruptcy should either 
 be reserved, or an adequate compensation provided 
 in case of their abolition, it might perhaps be 
 
 * Reports of Lords Committee on the Appellate Jurisdiction, 
 P. 9-
 
 CIVtL LAW OF ENGLAND. 77 
 
 found that the chief obstacles to the institution 
 of a separate court of bankruptcy would imper- 
 ceptibly die away. That equitable questions of 
 great difficulty sometimes occur in bankruptcy is 
 no doubt true* Difficult questions of strict law 
 do so likewise. Though the difficulties which arise 
 most frequently are of an equitable nature, that 
 circumstance only shews that the persons best 
 qualified to preside in a court of bankruptcy, are 
 those to whom the doctrines and practice of courts 
 of equity are familiar. Whether there should be 
 any or what appeal from a court of bankruptcy to 
 any of the divisions of the court of Chancery, is 
 a matter which might be left open to examination 
 and inquiry, and ought naturally to depend on the 
 rank and qualifications of the judges of the new 
 tribunal. 
 
 The Cursitors are the last class of subordinate 
 chancery officers whom it remains to mention, 
 though they have no immediate concern with the 
 administration of justice in that court. They are 
 twenty-four in number, and were incorporated by 
 Queen Elizabeth under the title of the Four-and- 
 twenty Cursitors, among whom the business which 
 arises in certain shires and parts of the country 
 was at that period arbitrarily and unequally di- 
 vided. They make out all writs which receive 
 the name aboriginals, issuing out of Chancery and 
 returnable in the Courts of King's Bench and 
 Common Pleas, as well as all writs of entry and 
 covenant ; and their duty formerly was to insert
 
 78 ON THE PRESENT STATE OF THE 
 
 new forms of writs as there might be occasion.* 
 They used formerly to dine together during the 
 four legal terms, for the purpose of improving each 
 other by a communication of each other's thoughts 
 and experience,! and the eighth and most impor- 
 tant article laid down for the government of the 
 corporation runs in the following words: " Item, 
 " no cursitor shall occupy his office by deputy, 
 " but shall attend from the beginning of the term 
 " to the latter end of every term, except it be 
 " by occasion of sickness, or by licence of the 
 " Lord Chancellor or Keeper of the Great Seal 
 " for the time being." Most probably all those 
 parts of their antient regulations which relate to 
 the exaction of fees remain to this day in vigorous 
 observance, while this article, which is so ma- 
 terial for the public service, has long been totally 
 neglected. The whole of the four-and-twenty 
 cursitors now act by deputy, and though each of 
 their places is worth from 200 to 1200 a year, 
 they are in fact mere sinecures, and appear to 
 be among the most useless places which the 
 Chancellor now has at his disposal. 
 
 It is impossible for any unprejudiced person to 
 survey the present state of the Court of Chancery 
 and not be struck with the multitude of sinecures 
 with which in the progress of time it has come to 
 be overloaded. The greater part of the officers 
 who now occupy places in Chancery are no doubt 
 
 * Curs. Can. p. 25. First Rep. of Fee Commissioners, p. 81. 
 f MS. in the possession of Henry Maddock, Esq. of Lincoln's 
 Inn. t Ib.
 
 CIVIL LAW OF ENGLAND. 79 
 
 absolutely necessary under some character or de- 
 nomination for carrying on the business of the 
 court, but it is undeniable that a considerable 
 proportion of them are either almost or entirely 
 inefficient, and that lucrative sinecures abound 
 more in the Court of Chancery than in any other 
 department of the government. The annual value 
 of the whole places belonging to the various 
 courts of equity, including those of the Chancellor, 
 Master of the Rolls, Vice Chancellor, 10 Masters 
 in Chancery, Accountant General, 6 Six Clerks, 
 60 Clerks in Court, 4 Registers, 24 Cursitors, 74 
 Commissioners in Bankruptcy, and Commissioners 
 Extraordinary in the Country, with all the train of 
 sinecurists, deputies, clerks, and assistants, it is 
 impossible to calculate. It probably amounts to 
 between 200,000 and 300,000 a year. That the 
 greatest part of this sum is not ostensibly paid 
 out of the treasury in salaries, but exacted from 
 the suitors in the shape of fees and dues, can 
 make no possible difference in the weight of the 
 burden, nor ought it to make it more reconcilable 
 to the country, that so large a share of it falls to 
 the lot of those who perform no seiVice whatever 
 to deserve it. It would be tedious and invidious 
 in this place to give a detailed account of these 
 sinecures, or the names of those who fill them ; 
 but one example which is furnished by a public 
 document may be given as a specimen of the ex* 
 tent to which this species of patronage may be 
 carried. It appears from a return made to the
 
 80 ON THE PRESENT STATE OF THE 
 
 House of Commons in 1822,* that a near rela- 
 tion of the Chancellor has received from him a 
 grant of the six following offices: 1. Register 
 of Affidavits in the Court of Chancery, 2; Clerk 
 of the Letters Patent to the Court of Chancery, 
 3. Receiver of Fines in the Court of Chan- 
 cery, 4. One of the Cursitors for London and 
 Middlesex, 5. The Clerkship of the Crown in 
 Chancery in reversion, and 6. The Grant of the 
 Office for the Execution of the Laws and Statutes 
 concerning Bankrupts in reversion likewise. All 
 of these offices are for life, and all of them exe- 
 cuted by deputy. Their annual value is set down 
 in the report at the several sums of 1260 : 14 : 10, 
 -451 : 5 : 5. 581 : 2. 500. 1081. and 
 4554., and some of them are believed to be rated 
 much below their present real value. Of the four 
 first he is now in actual possession, receiving from 
 them probably not much less than 3500. a year; 
 and if he should survive the occupant of the other 
 two, the reversion of them may swell his income 
 to about 9000. a year. It certainly is true that 
 the Chancellor has in strictness a right to bestow 
 these places upon whom he pleases, but the gen- 
 tleman alluded to has never done, or been required 
 to do, any service to the law ; and whether Lord 
 Eldon holds beneficial appointments himself, or 
 confers them on his immediate connexions, a cer- 
 tain degree of moderation ought never to be dis- 
 regarded. " Gardez vous," said the Chancellor 
 
 * Ordered to be printed 9th July, 1822, p. 12.
 
 CIVIL LAW OF ENGLAND. 81 
 
 de l'H6pital to the French judges, " surtout de la 
 " convoitoise d'un vil gain. La marchandise est 
 " chere lorsqu'on 1' achete avec perte de los et de 
 " gloire. J'aime mieux la pauvret^ du President 
 " de la Vacquerie que la richesse du Chancelier a 
 " qui son maitre fut contraint de dire, C'est trop, 
 " Rolin."* It cannot be denied that it is too much 
 in this very instance, and the facts which have 
 been stated, strongly point out the inexpedience 
 of continuing sinecures, of which the disposal is 
 so little directed by the merit of the individuals 
 upon whom they are usually conferred. It might 
 have been supposed that they would have formed 
 one of the subjects of inquiry to which the 
 attention of the Commissioners appointed by 
 parliament, in 1815, to investigate the fees of 
 officers of courts of law would have been pri- 
 marily directed. Part of their duty is by the 
 very terms of their appointment described to 
 be, "to make a diligent examination of the duties, 
 " salaries, and emoluments of the several officers, 
 " clerks, and ministers of justice of and within the 
 " Court of Chancery, and other courts in the said 
 " Commission particularly mentioned and referred 
 " to, and also to make a diligent examination what 
 " regulations may be Jit to be established respecting 
 " the duties, salaries, and emoluments of the said se- 
 " veral officers, clerks, and ministers of justice ."| 
 No part whatever of the arduous duty implied 
 
 * Vie du Chancelier de I'Hopital, p. 310. 
 t Commission prefixed to First Report of the Commissioners of 
 Fees in Courts of Justice, p. 1. 
 
 G
 
 82 ON THE PRESENT STATE OF THE 
 
 in these words has adequately been discharged. 
 However respectable the persons who sat upon the 
 Commission may individually be, it is impossible 
 to glance over the few first pages of their first 
 report, which is by far the most important they 
 have yet returned to parliament, without perceiv- 
 ing even at the outset, a greater disposition to 
 justify or palliate every existing practice and insti- 
 tution than they ought to have entertained, or to 
 rise from the perusal of the whole* without being 
 satisfied, that they have done less to deserve the 
 extravagant expence they have cost,f than any 
 parliamentary commission which has sat in the 
 course of the present century in England. 
 
 SECTION III. 
 
 On the Constitution of the House of Lords as the Court 
 of Ultimate Appeal from Courts of Common Law and 
 Equity. 
 
 IN all equitable suits 'where a judgment has 
 been pronounced in the Court of Chancery, or 
 on the equity side of the Court of Exchequer, the 
 House of Lords is the only tribunal before which 
 an appeal can be brought. From a decision of 
 
 * Commission prefixed to First Report of the Commissioners 
 of Fees in Courts of Justice, passim, particularlypages 82 and 
 183. 
 
 t Letter to Sir John Newport on the Commission to inquire into 
 the Courts of Justice in England, by P. Stratford, Esq. one of the 
 Masters in Chancery, p. 5.
 
 CIVIL LAW OF ENGLAND. 83 
 
 each of the three supreme Courts of Common Law, 
 an appellant may if he pleases always carry it 
 directly to the House of Lords ; but in certain cases 
 he has it also in his power to carry it before an 
 intermediate judicature, if he should deem such a 
 course more expedient. By the 31 of Edward III. 
 c. 12. a Court of Exchequer Chamber was ap- 
 pointed, consisting of the Lord Chancellor, Trea- 
 surer, and Judges, for the review of judgments 
 delivered in Exchequer. Another court of Exche- 
 quer Chamber was appointed by the 27th of Eliza- 
 beth, c. 8. consisting of the Judges of the two 
 courts of Common Pleas and Exchequer, for the 
 purpose of hearing appeals from the King's Bench, 
 in cases where the action has not commenced in 
 that court by original. There is likewise an ap- 
 peal from the decision of the court of Common 
 Pleas to the court of King's Bench in all instances. 
 Besides these various appeals which maybe made 
 either from one court of Common Law to another, 
 or from them to the courts of Exchequer Chamber, 
 each of the three great Common Law courts is 
 empowered, whenever any case of peculiar diffi- 
 culty occurs before it, to call in the assistance of 
 the members of the two other Common Law courts, 
 that the matter may be solemnly argued and de- 
 termined in the Exchequer Chamber before the 
 whole twelve Judges of England. It does not 
 appear how or when this right was conferred upon 
 them,* but they have probably possessed it ever 
 
 * Coke's 4th Institute, p. 119. Petyt's Jus Parliament, p. 26'. 
 G 2
 
 84 ON THE 'PRESENT STATE OF THE 
 
 since the separation of the Aula Regis into different 
 jurisdictions. Whatever may have been the man- 
 ner in which it was acquired, it is so rational a pri- 
 vilege to concede to the judges and so beneficial 
 to the suitors, that no further recommendation 
 than its own intrinsic merit is required to insure 
 its continuance. It is not likely to be enforced 
 too frequently, nor does it interpose delay, in- 
 crease expense, or multiply proceedings. It is 
 calculated to answer all the ends of the whole 
 intermediate courts of appeal which have just been 
 mentioned, without being liable to the strong ob- 
 jections which may be urged against them. To 
 preclude an appeal from the King's Bench to the 
 Exchequer Chamber merely because the action 
 has commenced by original writ instead of bill 
 of Middlesex, and to permit this appeal in all 
 other instances to authorise appeals from the 
 Common Pleas, where the most difficult questions 
 of law are supposed to be brought and the most 
 experienced lawyers are presumed to practise, in 
 order that they may be revised in King's Bench 
 where the qualifications of both judges and prac- 
 titioners ought in all reason and consistency to be 
 less distinguished and last of all to allow an 
 appeal to the Exchequer Chamber from the judges 
 of the Exchequer when they sit as expounders 
 of law, and to refuse it from the decrees of 
 the same men when they sit as expounders 
 of Equity appear to be anomalies by which 
 the judicial system of England is rather disfigured 
 than improved. As these intermediate appeals
 
 CIVIL LAW OF ENGLAND. 85 
 
 are seldom resorted to in practice, and that 
 scarcely ever but for the purpose of delay or 
 oppression, the whole of the appellate jurisdic- 
 tion of the King's Bench and the Exchequer 
 Chamber might be safely superseded. 
 
 The House of Lords would then constitute the 
 sole, as it is now the usual, court of immediate 
 appeal from each of the supreme courts of 
 Common Law and Equity. This assembly con- 
 sists of all English Peers, and Peers of the United 
 Kingdom, of the sixteen representative Peers 
 for Scotland, and four spiritual and twenty- 
 eight temporal representative Peers for Ireland. 
 It acts in two separate capacities; as one of 
 the two deliberative bodies of which Parliament 
 consists; and as the supreme court of appeal 
 in all civil suits except those which arise in 
 the Colonies. It is only in the second of 
 these points of view that it comes here under 
 consideration. About a hundred and sixty years 
 ago the House of Lords arrogated the right of 
 entertaining suits as a court of original juris- 
 diction as well as court of appeal, and a memo- 
 rable struggle ensued between it on the one side, 
 and the House of Commons and court of King's 
 Bench on the other, by both of whom this pre- 
 tension was strenuously resisted.* The claim to 
 original jurisdiction the House itself at last wisely 
 abandoned, and it has since contented itself with 
 the enjoyment of the appellate jurisdiction alone, 
 
 * Hale's Jurisdiction of the House of Lords, p. 107. Ilargrave's 
 Introduction to Hale's Jurisdiction, p. 103 et seq.
 
 86 ON THE PRESENT STATE OF THE 
 
 of which it remains in undisturbed possession. 
 The Lord Chancellor, who acts as its perpetual 
 Prolocutor by virtue of his office, presides at the 
 hearing of appeals as well as upon every other oc- 
 casion when he happens to be present, but all 
 members of the House who have attained the age 
 of twenty-one have an undoubted right, except in 
 one or two disputed cases, to sit, speak and vote 
 on every question which may come before them. 
 Great deference is, at the same time, always paid 
 to the opinion of those Peers who have been bred 
 to the profession of the law, among whom two or 
 three Chief Justices or Ex-Chancellors are usually 
 to be found, and especially to that of the Chancel- 
 lor for the time being, whose official rank, capa- 
 city, experience, and the attention he is indis- 
 pensably obliged to bestow on the business 
 under consideration, necessarily confer upon him 
 a predominating influence in the determinations 
 of the House. 
 
 Until a recent period, comparatively few legal 
 questions were brought before this court of ulti- 
 mate resort, except claims of Peerage and rights 
 connected with them, and those which happened to 
 occur were usually heard by the Chancellor, either 
 on those days when the court of Chancery did not 
 sit, or when he could procure the Master of the 
 Rolls or some of the other Judges to carry on its 
 sittings in his stead. Towards the close of the 
 last or beginning of the present century however, 
 the number of appeals, of which a considerable 
 proportion came from Ireland, and a much larger
 
 CIVIL LAW OF ENGLAND. 87 
 
 from Scotland, began rapidly to increase, and in 
 1813 the accumulation of them became so great, 
 that the House felt itself under the necessity of 
 sitting three days a week from 10 till 4 during the 
 session, for the sole purpose of disposing of ap- 
 peals and writs of error. This course of proceeding 
 continued till 1823, when it was announced by 
 a Report of the House on the Appellate Jurisdic- 
 tion, that notwithstanding the additional means 
 of dispatch which had been thus employed, the 
 number of remaining appeals and writs of error, 
 instead of being diminished, had gone on regularly 
 and rapidly augmenting, and that there then 
 remained to be heard and determined 3 from 
 Wales, 27 from England, 44 from Ireland, and no 
 fewer than 151 from Scotland.* Alarmed at this 
 prospect of their own condition, and sensible that 
 the established legal machinery of the House had 
 from some defect in its power or rate of working 
 become incapable to reduce the causes which seem- 
 ed bursting in ilpon them, they mechanically pro- 
 ceeded to set up two Judges instead of one, and 
 furnished a forced supply of Peers to keep them 
 both in motion. Accordingly in the beginning of 
 1824 an entirely new officer was created under 
 the name of Deputy Speaker, for the purpose of 
 hearing appeals during two days a week in addi- 
 tion to the Chancellor's three ; and a standing 
 order was made to compel the appearance of as 
 many members in rotation as should be sufficient 
 
 * Report on the Appellate Jurisdiction of the House of Lords, 
 Appendix B. p. 20.
 
 88 ON THE PRESENT STATE OF THE 
 
 to fill up each day the limited contingent of three 
 peers and a bishop, which is the regular number 
 now required to constitute a house. Judging 
 from the result of this experiment, during the six 
 months which this system has been in opera- 
 tion, it seems to be generally thought that it 
 has been completely successful. It promises tem- 
 porary relief, and as it was only proposed to be of 
 temporary duration, it is possible it may act with 
 so much vigour as to fulfil its purpose and come 
 to its intended termination without any inconve- 
 nience being suffered from its introduction. It is 
 not impossible on the other hand, that the creation 
 of a new officer to exercise a concurrent jurisdic- 
 tion with the Chancellor in the disposal of appeals, 
 as well as the method which has recently been 
 adopted for obtaining the compulsory attendance 
 of peers, may turn out to be innovations of a more 
 hazardous nature than they have been imagined. 
 That every Peer should be duly qualified to vote 
 upon all legal or deliberative questions which may 
 come before the House on those occasions when 
 he happens from choice or necessity to be pre- 
 sent, is neither supposed in theory nor is it pos- 
 sible in practice. In questions of a political or 
 legislative nature, the deficiencies of the House, 
 even where they exist, are not obvious to com- 
 mon observation ; and with regard to those which 
 are strictly legal, they were, until within the last 
 twenty or thirty years, comparatively so rare, that 
 the magnitude of the property at stake, the rank 
 and notoriety of the parties, the interest belong-
 
 CIVIL LAW OF ENGLAND. 89 
 
 ing to the point at issue, the habitual reverence 
 formerly paid to place and dignity, and more than 
 all, the state and ceremony with which business 
 was conducted, conspired to prevent its qualifica- 
 tions as a Court of Justice from being subjected 
 to close examination. With time and familiarity 
 all this is wearing fast away, and the multitude of 
 appeals alone is helping more than any other 
 cause to destroy the awe with which the discus- 
 sion of them was wont to be attended. As they 
 occupy the time of the House so constantly during 
 the session, that the requisite number of peers do 
 not spontaneously attend, a reinforcement of them 
 is daily brought up for. the ostensible purpose of 
 bearing a part in the investigation of questions 
 of which they are so profoundly ignorant, that it is 
 painful to observe the expedients to which they 
 have recourse to conceal or relieve the dulness of 
 their situation. But this is not all. As the service 
 of these distinguished conscripts does not last be- 
 yond a single day, it seldom happens that the same 
 person hears out both sides of the same argument, 
 and if a cause should prove long or intricate, it 
 may be begun before an unlearned, inexperienced 
 youth of three or four and twenty, continued 
 before a general of horse, and ended before a yel- 
 low admiral. It is true all this is done in con- 
 formity with the rules and usages of the House, 
 but this cannot long be received as a valid excuse 
 for a proceeding so intrinsically absurd. Few 
 improvements in our constitution are more to be 
 desired than that a certain proportion of Peers,
 
 90 ON THE PRESENT STATE OF THE 
 
 should addict themselves more to the study of the 
 law, and that the study of the law should be to 
 them made more easy and interesting. If some of 
 them who have not applied much of their time to 
 subjects of legal or constitutional research, should 
 occasionally step in while an adequate supply of 
 efficient members regularly attended to transact 
 the business, no just animadversion could be made 
 on the adequacy of the tribunal to which they 
 belong ; but gravely to persist from day to day 
 in the repetition of a piece of solemn mockery, 
 while the rights, characters, and property of their 
 fellow-subjects are at stake, cannot fail eventually 
 to become displeasing in the eyes of the country, 
 and discreditable to the administration of justice. 
 The appointment of a Deputy Speaker to deter- 
 mine appeals in the absence of the Chancellor, 
 seems calculated to detract from the character of 
 the House at least as much as the compulsory at- 
 tendance of peers to witness their discussion. In 
 the first place he is an unknown public officer, and 
 place and consequence, as well as present or ex- 
 pected remuneration corresponding to his rank, 
 must be bestowed upon him. This has not yet 
 been done, and the House may find considerable 
 difficulty in providing it. Most probably they 
 apprehend that his occupation will have ceased 
 before they are likely to be called upon to take 
 these subjects into consideration. Nothing can 
 be more improvident than to act upon such vague 
 expectations. It is well known that no kind of 
 dignitary can be set up in any department of the
 
 CIVIL LAW OF ENGLAND. 91 
 
 state, without at onee altering the relations of all 
 who are above, beside, or below him, and the 
 inconveniences arising from his creation invaria- 
 bly increase with the extent and arduousness of 
 the functions with which he is intrusted. Every 
 new office therefore, however short it may last, 
 affords reasonable ground of alarm, both on its 
 own account and as a precedent for others. But 
 it is not certain that the duration of this func- 
 tionary will be so limited. Years may impercep- 
 tibly steal away, the arrear of causes may remain 
 undischarged, and the Deputy Speaker may 
 linger on until the permanent establishment which 
 he obtains, may be lamented by those very per- 
 sons to whom his existence has been owing. 
 The manner in which the Deputy Speaker is em- 
 ployed is not less open to animadversion than his 
 creation. Causes are not heard by him and the 
 Chancellor according to the order in which they 
 stand in the roll; butanarrangementhasbeenmade 
 by which the Deputy Speaker is confined to Scotch 
 appeals alone, while the Chancellor disposes of all 
 those which come from the other parts of the 
 Kingdom. This appears to be an unnecessary 
 and invidious distinction, with which it is almost 
 impossible the people of Scotland can long con- 
 tinue satisfied. It is in itself a sort of degrada- 
 tion, and tends to promote causes of discontent, of 
 which factious and designing men may avail them- 
 selves when it is least expected. The right of 
 appeal which the people of Scotland by the act 
 of Union reserved to the House of Lords, could
 
 1)2 ON THE PRESENT STATE OF THE 
 
 not have been understood to be an appeal in any 
 respect differing from that which was competent 
 to their English brethren; and to order their causes 
 to be tried by the Chancellor's deputy, while all 
 others are tried by the Chancellor himself, is a 
 distinction which it is neither liberal nor politic 
 to introduce now for the first time. That Scotch 
 appeals have of late years occupied a disproportion- 
 ate share of the Chancellor's attention is certainly 
 true, but the litigious disposition of the people of 
 that country is not the only cause which may be 
 assigned for the growth of an evil so much to be 
 lamented. Give them fewer or at least better 
 judges than the majority of those they have for the 
 last twenty or thirty years had ; let appeals as far 
 as regularity will allow be at once decided upon 
 such grounds as the parties can advance, without 
 remitting them upon technical objections to the 
 courts below ; and let the law of Scotland be 
 administered without any concealed or avowed 
 intention of assimilating its peculiar doctrines to 
 those which prevail in that of England; and it is 
 to be hoped this great source of appeals to the 
 House of Lords will sustain a speedy and perma- 
 nent diminution. 
 
 While this distribution of causes between the 
 Chancellor and Deputy Speaker somewhat affects 
 the people of Scotland, the disposal of these 
 officers themselves may ultimately affect the dig- 
 nity of the Chancellor and the House itself some- 
 what more deeply. That the judge who is highest 
 in rank should be highest in place is a maxim
 
 CIVIL XAW OF ENGLAND. 93 
 
 about which there can be no dispute, and to 
 which there can be no exception. Yet according 
 to the present arrangement the Chancellor abdi- 
 cates the woolsack two or three days a week to 
 hear motions and other ordinary business which 
 may be brought before him as an original judge 
 in Chancery, while the Deputy Speaker succeeds 
 to all the pomp and splendour of the House of 
 Lords, deciding on causes which are often of 
 greater difficulty and value, and very generally of 
 greater public interest and importance. Be this 
 as it may, this arrangement is an obvious and un- 
 accountable subversion of natural order and subor- 
 dination. No speculator has ever ventured to pro- 
 pose a scheme so purely experimental, or so much 
 at variance with the opinions and feelings of 
 mankind. A single session will not pass over 
 without producing a certain effect, and if it con- 
 tinues for a few years, it will divest the Chancel- 
 lor of no inconsiderable portion of pre-eminence 
 which has hitherto been immemorially connected 
 with his name and office. Such seem to be the 
 effects which this arrangement is likely to produce 
 upon the Chancellor. Let them next be considered 
 with respect to the Deputy Speaker. While the 
 Chancellor is engaged in his own court, the De- 
 puty Speaker is undergoing an ordeal in the 
 House of Lords, the result of which, whether he 
 acquits himself well or ill, cannot fail to be preju- 
 dicial either to the House or the Chancellor, but 
 cannot possibly prove advantageous to either. If 
 the Deputy Speaker should discharge his duty
 
 94 ON THE PRESENT STATE OF THE 
 
 with distinguished diligence and ability, the House 
 has clearly not gained, because however eminent 
 he may be, the relative station which he fills pre- 
 cludes all presumption of his attainments being 
 superior to those of the Chancellor whose place 
 he supplies. The Chancellor himself has clearly 
 suffered, because instead of sitting alone and un- 
 rivalled as formerly, another eminent and inde- 
 pendent judicial officer is raised up with whom 
 he must be content to share the consideration of 
 the House and homage of the public. Suppose, 
 on the other hand, the Deputy Speaker should 
 discharge his duty insufficiently, the conse- 
 quence would probably be, that the Chancellor 
 would be as much injured by the failure of his 
 deputy as by his success, but whether he did or 
 not, the House of Lords would infallibly be in- 
 volved in the Deputy's misfortune. That body 
 cannot fail to sink in reputation, whenever it per- 
 mits any individual to be placed at its head who 
 falls short in that judicial learning and wisdom 
 which its constitutional functions require it to pos- 
 sess. Whichever of the contingencies now con- 
 templated should happen, whether the creation of 
 a Deputy Speaker should directly affect both the 
 House and the Chancellor, or only affect the House 
 indirectly by means of the degradation which it 
 might entail upon him, the result would be equally 
 unfortunate. On all occasions where the charac- 
 ter of the House is concerned, its interest and that 
 of the Chancellor will be found to be indissolubly 
 linked together. Under no circumstances can they
 
 CIVIL LAW OF ENGLAND. 95 
 
 be separated without mutual disadvantage. How- 
 ever great the inherent weight and dignity of the 
 Chancellor may be, it is much augmented by the 
 splendour of the place where he presides, while 
 his presence reflects equal honour upon it by the 
 universal respect and regard which is paid to his 
 exalted and laborious office. With all the assistance 
 that can be derived from rank, state, and talents, 
 too much reverence cannot be preserved for courts 
 of justice, and the present conjuncture is not one in 
 which any judicial or deliberative assembly ought 
 voluntarily to relinquish any just hold which it pos- 
 sesses over the minds of mankind. There is no pro- 
 bability that the House of Lords will be able to cease 
 from hearing appeals of some sort or other during 
 a great part of every session, unless they renounce 
 the appellate jurisdiction altogether, and it seems 
 fitting that the Chancellor should be always found 
 as chief among them.' Should one or more addi- 
 tional judges be required to expedite the ordinary 
 business of the Court of Chancery, they ought 
 assuredly to be provided, but the Chancellor's 
 first apparent duty is to dispatch the appeals 
 which are entered before the court of ultimate 
 resort; his next to dispose of the business of 
 his own peculiar jurisdiction, and of appeals in 
 Chancery from the Master of the Rolls and Vice 
 Chancellor, provided the continuance of such a 
 proceeding should be thought expedient. If after 
 that any spare time remained it might be well 
 employed in forwarding equity business as an 
 original judge in the manner he has hitherto been
 
 96 ON THE PRESENT STATE OF THE 
 
 accustomed to do. Both he and those who as- 
 sist him in the work of doing justice, would 
 thus be restored to their proper sphere, harmo- 
 nising better together, and better disposed for 
 the attainment of the ends which they were 
 destined to accomplish. 
 
 The objections that have now been stated to 
 the appointment of a Deputy Speaker, may have 
 been expressed more strongly than future expe- 
 rience will be found to warrant. It will be a 
 just subject of congratulation, if such should prove 
 to be the issue, but whatever affects the influence 
 or jurisdiction of the Chancellor is of such para- 
 mount importance to the state, that the most 
 distant interference with his office cannot be 
 too strongly deprecated. Perhaps no one pub- 
 lic servant could be named whose influence and 
 authority it is so desirable to continue unimpaired, 
 and his practical utility in some respects exceeds 
 that which is assigned to him by the theory of the 
 constitution. The distinguished capacity and inte- 
 grity, which the Chancellor has for two centuries 
 almost invariably possessed, has on many trying 
 occasions rendered him a protection to those who 
 had no other person to support their interests : 
 the habit of candid and deliberate examination to 
 which he is trained by his professional life, natu- 
 rally prepare him for pointing out the risk or irre- 
 gularity of measures which may be proposed in 
 the cabinet ; while the fairness and impartiality 
 which upon great legal and constitutional ques- 
 tions does and ought to direct his advice and de-
 
 CIVIL LAW OF ENGLAND. 97 
 
 cisions whenever an appeal is made to his autho- 
 rity, renders him of incalculable value as an arbi- 
 trator between them and their political opponents. 
 Too much skill and caution therefore cannot be 
 manifested in examining the qualities and endow- 
 ments of the individual by whom this judicial dic- 
 tatorship is to be exercised ; but when the choice 
 has once been made, whatever is calculated to 
 detract from that supremacy which almost puts it 
 beyond his power to be guilty of an unworthy or 
 illegal act, undermines one of the strongest bul- 
 warks which wisdom and experience, aided by 
 a favourable concurrence of circumstances, have 
 raised up for the defence of the rights and immu- 
 nities of the people of England. It is an ap- 
 prehension that the existence of a Deputy Speaker 
 might immediately or remotely lead to such a 
 result, which has alone prompted any expression 
 of regret at the creation of such an office, or desire 
 for its discontinuance. 
 
 SECTION IV. 
 
 On the Procedure of the Supreme Courts of Common Law. 
 
 THE injurious influence which the Norman conquest 
 had upon the Common Law is still perceptible, at 
 the distance of 750 years from the date of that 
 event. It was the Norman conquest which intro- 
 duced the feudal system with all its complicated 
 and oppressive attendants ; the Norman lawyers 
 
 H
 
 98 ON THE PRESENT STATE OF THE 
 
 sowed the seeds of those endless subtleties and 
 distinctions which once bewildered and still per- 
 plex every part of our judicial system ; and it is 
 to the Norman invasion and Norman lawyers com- 
 bined, that the heterogeneous mixture of English, 
 French, and Latin terms may justly be attributed, 
 which renders our legal phraseology to this day 
 the most enigmatical and repulsive which has ever 
 prevailed in a refined community. Almost every one 
 who endeavours to gain an acquaintance with the 
 laws of Greece, Rome, or any of the civilized states 
 in modern times, will acknowledge that in none of 
 them is a clear apprehension of the meaning of the 
 technical words and phrases employed, attended 
 with half so much difficulty as is experienced in 
 the study of the Common Law of England. La- 
 borious attempts have indeed been made to shew 
 that the revolution which William I. accomplished 
 in the government of the country had but an 
 inconsiderable influence on its jurisprudence;* 
 but whatever credit may be due to the facts that 
 have been advanced, they are insufficient to support 
 the superstructure that has been raised upon them. 
 Unless the laws of William and his successors had, 
 either in substance or in the means adopted for 
 their execution, been decidedly inferior to that 
 collection of institutions usually ascribed to Ed- 
 ward the Confessor, the earnestness and persever- 
 ance with which the restitution of the Saxon laws 
 was demanded remains inexplicable. None of the 
 
 * Male's Hist, of Com. Law, p. 102 ct scq. Luders's Disserta- 
 tions, p. 341 et seq.
 
 CIVIL LAW OF ENGLAND. 99 
 
 prejudices by which mankind are generally influ- 
 enced, are at all sufficient to account for the en- 
 thusiastic attachment 'with which these ancient 
 ordinances never ceased to be regarded. The 
 supplications of a whole people are never called 
 forth by an imaginary cause, and however de- 
 fectively the wants and wishes of our ancestors 
 on this occasion, may have been made known or 
 recorded, enough remains to shew that they were 
 neither ignorant nor capricious. All those traces 
 of the temper and spirit of the Saxon laws which 
 remain, especially such as relate to the forms of pro- 
 cedure and means by which justice was adminis- 
 tered, lead us to conclude that had the principles 
 adopted by them been permitted to become the 
 groundwork of our present municipal code, receiv- 
 ing such additions and improvements as the ex- 
 tension of commerce and advancement of society 
 rendered necessary, its rules would have been 
 less intricate and artificial, its language nearly 
 approaching to that in common use, and its 
 practice more simple and intelligible than we 
 now find them. " There was one mischief," 
 says Blackstone, in speaking of the Norman 
 conquest and Norman language, " too deeply 
 " rooted thereby, and which this caution of King 
 " Edward came too late to eradicate. Instead 
 " of the plain and easy method of determining 
 " suits in the County Courts, the chicanes and 
 " subtleties of Norman jurisprudence had taken 
 " possession of the King's Courts, to which every 
 " cause of consequence was drawn. Indeed that 
 
 H 2
 
 100 ON THE PRESENT STATE OF THE 
 
 " age and those immediately succeeding it, were 
 " the era of refinement and subtilty. There 
 " is an active principle in the human soul that 
 " will ever be exerting its faculties to the utmost 
 " stretch, in whatever employment, by the acci- 
 " dents of time and place, the general plan of 
 " education, or the customs and manners of the 
 " country, it may happen to find itself engaged. 
 " The northern conquerors of Europe were then 
 " emerging from the grossest ignorance in point 
 " of literature ; and those who had leisure to cul- 
 " tivate its progress, were such only as were clois- 
 " tered in monasteries, the rest being all soldiers 
 " or peasants. And unfortunately the first ru- 
 " diments of science which they imbibed were 
 " those of Aristotle's philosophy, which were 
 " brought from the east by the Saracens into 
 " Palestine and Spain, and translated into barba- 
 " rous Latin. Both the divinity and the law of 
 " those times was therefore frittered into logical 
 " distinctions, and drawn out into metaphysical 
 " subtleties with a skill most amazingly artificial ; 
 " but which serves no other purpose than to shew 
 " the vast powers of the human intellect, however 
 " vainly or preposterously employed. Hence law 
 " in particular, which being intended for univer- 
 " sal reception ought to be a plain rule of action, 
 " became a science of the greatest intricacy ; es- 
 " pecially when blended with the new refinements 
 " engrafted upon feudal property : which refine- 
 " ments were gradually introduced by the Norman 
 " practitioners, with a view to supersede the more
 
 CIVIL LAW OF ENGLAND. 101 
 
 " homely but more intelligible maxims of distri- 
 " butive justice among the Saxons. And to say 
 " the truth, these scholastic reformers have trans- 
 " mitted their dialect and finesses to posterity, so 
 " interwoven with the body of our legal polity, 
 " that they cannot now be taken out without a 
 " manifest injury to the substance."* In most of 
 these respects, Equity, being of much later origin 
 than Common Law, possesses over it a decided 
 advantage. To whatever charges the Equitable 
 law of England may justly be liable, it cannot be 
 denied that the terms and phrases which it has 
 introduced, are in general much less removed from 
 those of ordinary speech, and its forms are also 
 less strict and technical. There are some to be 
 found who, from the force of habit, or a disposi- 
 tion to question every thing felt or admitted by 
 the rest of mankind, deny these peculiarities of 
 the Common Law to be any inconvenience, either 
 in the study of it as a science or its pursuit as a 
 profession. Until difficulty and abstruseness shall 
 be made a test of excellence, it would be super- 
 fluous to contend with disputants of this descrip- 
 tion. Taking it for granted therefore that every 
 thing which is uncouth or mysterious in the terms, 
 phraseology or procedure of the Common Law is 
 a serious practical disadvantage, it is one from 
 which there is little prospect that it ever can be 
 wholly relieved. Much however may be done to 
 allay it, as well as to correct the anomalous in- 
 
 * Blackstonr'b Com. vol. 4. p. 4l6.
 
 102 ON THE PRESENT STATE OF THE 
 
 consistent and useless rules which must encumber 
 a body of practice which has been permitted to 
 drag on for centuries unreduced and unreformed. 
 Without attempting to enter into a commentary on 
 the merit or demerit of each successive step which 
 is taken in the course of a suit^at law, a few of 
 them shall be selected for examination, in order to 
 afford sufficient ground for concluding, that with 
 skill and patience a variety of decided amendments 
 might now be suggested in almost every part of 
 the system. 
 
 1 . An action may commence in the three Courts 
 of King's Bench, Common Pleas, and Common 
 Law side of the Exchequer, in 3 different ways. 
 In the King's Bench by bill of Middlesex or latitat: 
 by common or special original writ out of Chancery, 
 in the case of common persons, peeYs, and corpo- 
 rations : by attachment of privilege at the suit of 
 attornies and officers of the Court : and by bill 
 against prisoners in the actual or supposed custody 
 of the Marshal of the King's Bench prison, attor- 
 nies and officers of the Court, and members of 
 the House of Commons. In the Common Pleas, 
 by common or special original writ also out of 
 Chancery, by capias quare clausum fregit founded 
 on a supposed original, by attachment of privilege 
 at the suit of attornies and officers of the court : 
 and by bill against attornies, officers and members 
 of the House of Commons. In the Exchequer, 
 by a species of original writ against peers and 
 members of the House of Commons: by quo 
 minus capias : by subpoena : by capias of privilege
 
 CIVIL LAW OF ENGLAND. 103 
 
 at the suit of attornies and officers of the court : 
 and by bill against attornies, officers and pri- 
 soners.* All of these will be found to differ 
 more or less from each other, according to their 
 nature or the court in which they are instituted. 
 The plaintiff has therefore great choice in the 
 nature of actions, and their costliness is as 
 various as their natures. An action commenced 
 by common original is more expensive than one 
 commenced by bill; and one commenced by special 
 original is more expensive than a common original. 
 No appeal lies from a judgment pronounced in 
 an action begun in any of the Common Law 
 courts by original, except to the House of Lords. 
 It is also an established rule, that upon the issuing 
 of special originals, or even of common originals in 
 actions of debt where a Writ of Error to the House 
 of Lords has been filed, t a fine is paid to the 
 King, corresponding to the amount of the sum 
 recovered by judgment, or of the debt claimed 
 in the action. These fines were at first imposed 
 in order to purchase the indulgence or favour of 
 the Sovereign and his judges, at a period when 
 justice was too often made the subject of traffic, J 
 and form at this day one of the most odious ex- 
 actions by which its free administration is ob- 
 structed. A case occurred some time ago, in 
 which a bond having been given by a person who 
 could only be effectually sued by an original 
 
 * Tidd's Practice, 3d ed. p. 66, ct scq. 
 
 t Boole's Suit at Law, p. 34. 
 
 t Ilule's History of the Common Law, p. 152.
 
 104 ON THE PRESENT STATE OF THE 
 
 writ, and as the amount of the bond was so large 
 that the fine payable on obtaining the writ being 
 at the rate of 5 for every 1000, would have 
 amounted to between 1000 and 1500, that cir- 
 cumstance of itself prevented the enforcement of 
 the demand, as the estate of the person who was 
 entitled to sue was then insolvent.* This no doubt 
 is an extreme case, but extreme cases are not so 
 rare as is always imagined, and it is by means of 
 them the hardship of any general law or usage 
 can most easily be demonstrated. If it had been 
 publicly known that considerable sums are annu- 
 ally levied by this ungracious impost, it would 
 no doubt have been included among the law taxes 
 which so much to the credit of the government 
 and jurisprudence of the country have been re- 
 cently repealed. 
 
 Besides the complicatibn which results from 
 these various ways of commencing an action, and 
 the chargeableness with which some of them are 
 attended, it is further increased by a number of 
 steps which are still presumed to have taken place, 
 but have now fallen into disuse, or degenerated 
 into mere formality. If an action is begun in 
 King's Bench by bill, the bill which is supposed 
 to be addressed to the judges of the court is fic- 
 titious. If an action is begun by a common origi- 
 nal in Common Pleas it is unnecessary, and if 
 begun there, or in the court of King's Bench, by 
 a special original, that writ is almost always ficti- 
 
 * First Report of the Fee Commissioners, p. 87.
 
 CIVIL LAW OF ENGLAND. 105 
 
 tious.* As the three writs of capias, alias, 
 ries, which are supposed to be issued one after 
 another when required to enforce the appearance 
 of the defendant, are really made out all at once by 
 the plaintiff's attorney without the defendant re- 
 ceiving the slightest notice of them, these writs are 
 substantially fictitious,! and the two names which 
 the plaintiff still goes through the ceremony of 
 producing as pledges for the prosecution of his 
 suit are idly and grossly fictitious. The bill with 
 which one of the actions which may be raised in 
 King's Bench now really begins, supposes the de- 
 fendant to be in the custody of the Marshal of the 
 King's Bench prison, in order to give the Court 
 jurisdiction. This is fictitious. And when it is 
 alleged in an action in Exchequer that the plain- 
 tiff is the King's debtor, in order to give the Court 
 jurisdiction, that allegation in almost every in- 
 stance is fictitious also. Even a defendant 
 who refuses to appear to an action in obedience 
 to. the process of the Court, however severely 
 he deserves to be visited for his neglect or con- 
 tumacy, is supposed to be guilty of an act 
 which must in strictness be pronounced fictitious. 
 By the process of the court he is treated as an 
 outlaw, and punished for the crime of rebellion.;}: 
 He is put out of the King's protection, his goods 
 forfeited, his person imprisoned, and the profits 
 of his land sequestered for the use of the Crown ; 
 
 * Boole's Suit at Law, p. 37 and 28. 
 
 t Id. p. 31. 
 
 t Tidd's Practice, 3d cd. p. 127-
 
 106 ON THE PRESENT STATE OF THE 
 
 measures as inappropriate to the offence as use- 
 less to the plaintiff, whose indemnification ought 
 not to have been neglected. These are pro- 
 duced merely as specimens of the fictions, pecu- 
 liarities, and redundancies, which in our courts 
 of Common Law lengthen and perplex the very 
 first stage of the road to justice ; and it is hard to 
 say to what extent, if it were necessary, the cata- 
 logue of such imperfections might be multiplied. 
 
 Upon the uselessness of some of the proceedings 
 required at the beginning of a suit at law, the au- 
 thor whose book is regarded as a manual on the 
 subject, has expressed himself to the following 
 purpose : " Now when we consider the nature 
 " of these beginnings of a suit, that is, -the bill 
 " which is supposed to be filed in the King's 
 " Bench, and the original which is supposed to 
 " be sued out, returned, and filed in the Common 
 " Pleas, and the formal parts of our pleadings 
 " which depend on each of them; when, I say, we 
 " consider the obscurity that appears therein, we 
 " conclude, that though these and the formal part 
 " of the subsequent proceedings dependent on 
 " them, might in antient times have been neces- 
 " sary and material, yet at this time they are 
 *' become useless and unnecessary, and almost 
 " unintelligible forms ; and that what were then 
 " introduced for conveniency, are now antiquated 
 " as to their use. And yet these are continued 
 " as things wonderfully material, and with much 
 " exactness followed ; though one may venture to 
 " say, as it is very certain, that they only serve
 
 CIVIL LAW OF ENGLAND. 107 
 
 " to swell the bulk of the subsequent proceedings, 
 " and very unnecessarily increase the expense of 
 " a suit, if no other inconveniences depended on 
 " them." 
 
 " For with respect to the bill supposed to be 
 " filed in the King's Bench, it is thereby asserted 
 " that the defendant is in the custody of the 
 " Marshal, which is fictitious; also that pledges 
 " are given by the plaintiff to prosecute, which is 
 " altogether as untrue. Nor does it appear that 
 " ever any process issued requiring pledges, or 
 " that ever any pledges were found in this court ; 
 " yet with these the declaration is concluded, and 
 " the memorandum at the beginning of the issue, 
 " with the imparlance, depend on and refer to it, 
 " as most of the subsequent pleadings do in some 
 " respect or another. And yet what is this bill 
 " but a mere formal thing, grounded on fiction 
 " and full of falsities, and which is indeed never 
 " filed but of necessity ? For the statute of Jeo- 
 " fails helping the omission of filing and continu- 
 " ing it on the roll, if there is no writ of error 
 " brought there is no bill filed ; and in case a writ 
 " of error is brought, such a bill may be filed at 
 " any time before errors are assigned. But is it 
 " not ridiculous to think that a judgment should 
 " be set aside for error, for want of such a piece 
 " of formality ? What is the intent of it that makes 
 " it so necessary ? Why it gives the court its 
 " jurisdiction. And with respect to the original 
 " out of Chancery, is it not just such another 
 " formal, useless, and unnecessary process, which
 
 108 ON THE PRESENT STATE OF THE 
 
 " draws after it many inconveniences, and formal 
 " matters in the subsequent pleadings ? Does it 
 " not create an extraordinary charge for the 
 " capias? Is not the/we, when taken, an unneces- 
 " sary expense ? They are in themselves evi- 
 " dently unnecessary, because we often do with- 
 " out, and indeed never file a bill or a special 
 " original, but in cases where they are particularly 
 " required, or purely to increase the costs of the 
 " defendant. Do not these proceedings render 
 " the beginning of a suit obscure and difficult? 
 " or, to speak paradoxically, is not a suit almost 
 " always ended before it is begun? For judgments 
 " are generally first obtained before the suits are 
 "thus formally begun ; and then sometimes set 
 " aside for not being so. Besides, when ajudg- 
 " ment is signed, which requires a special original 
 " to warrant it, and that original is not filed in due 
 " time, which is very often the case, there must 
 " be a petition to the Master of the Rolls, and an 
 " order drawn upon that petition, which order 
 " must be entered and filed, even for leave for the 
 " Cursitor to make it out ; by which we see how 
 " proceedings may be enlarged and costs multi- 
 " plied, for what at this time may justly be deemed 
 " the most useless and unnecessary proceedings 
 " in a suit imaginable."* Another writer, whose 
 character as a lawyer has stood high from his 
 own time to the present, expressed himself still 
 more strongly a hundred and fifty years ago, when 
 
 * Boole's Suit at Law, p. 3538.
 
 CIVIL LAW OF ENGLAND. 109 
 
 the revision of several branches of the law was 
 agitated, during the usurpation of Cromwell. He 
 complains of there being " so many degrees of 
 " writs, as original) capias, alias, pluries, exigent 
 " and proclamation, and capias utlagatum, which 
 " require many returns, which also must have 
 " many days between the teste and return day ; 
 " and hereby much time is lost in every term ; 
 " and all to this purpose, only to bring the defend- 
 " ant to appear, or else to outlaw him, which for 
 
 " 5/. will cost almost as much more."* " As 
 
 " to the cure hereof, it is offered, 1. To consider 
 " what to do about the taking away of all writs 
 " to arrest and imprison to bring men to ap- 
 " pear to actions personal and mixed and all 
 " writs and outlawries thereupon and outlawries 
 " after judgment and all bills of Middlesex, Lati- 
 " tats, and attachments of privilege for appearance 
 " in all Courts of Record and all arrests by the 
 " mace, Serjeants, and the like ; except in special 
 " cases, as in case of a fugitive, and a merchant 
 " and tradesman; and then by license of the court. 
 " And instead thereof, that there be a summons 
 " much like to the Court of Chancery, save only 
 " that it express the very cause of action, or that 
 " a copy of the declaration be left with the sum- 
 " mons, under the hand of the plaintiff or his 
 " attorney : and to make this serve in all cases, 
 " save only in the trial of titles of land, instead of 
 " the original writ and all other process that was 
 
 * Shepherd's England's Balme, London, 1 657, 12mo. p. 65.
 
 110 ON THE PRESENT STATE OF THE 
 
 " used, and did serve to bring the defendant to 
 " appear."* 
 
 Without examining the practicability of the 
 specific reform here proposed, or proceeding to 
 suggest any other in its stead, it may be sufficient 
 to advert to a few obvious maxims according to 
 which that part of the judicial procedure of every 
 country ought to be framed, which is intended to 
 bring the parties before the court. One of these 
 is, that the jurisdiction which every court is per- 
 mitted to exercise, ought either to be distinctly 
 prescribed or recognised by the legislature. 
 Whatever alterations time or circumstances ren- 
 der necessary, should be made avowedly and 
 deliberately, and not introduced surreptitiously as 
 acts of assumption or contrivance proceeding from 
 the courts themselves. More or fewer vestiges of 
 the violence or dissimulation which has been prac- 
 tised always remain behind, and though they pro- 
 duce no marked sensation, they neither pass unob- 
 served by suitors or the public. They are seen 
 and felt to be proofs of a departure from that strict 
 adherence to truth and plain dealing, which should 
 characterise every step taken by tribunals of justice 
 orundertheirauthority. As the jurisdiction of every 
 court ought to be clear, the access to it ought to be 
 open. Every man who has a right to sue, ought 
 to be at liberty to sue in his own name and at his 
 own pleasure. Unless the Crown, or its officers, 
 are truly the prosecutors of the suit, they ought 
 
 * Shepherd's England's Balmc, p. 68.
 
 CIVIL LAW OF ENGLAND. Ill 
 
 never to be represented to the world in that light, 
 and the interposition of their names generally 
 tends to induce a misconception of the nature 
 of the point in question, and sometimes becomes 
 a hardship on the real litigants. If the con- 
 currence of public servants is required as a pre- 
 liminary to an action, they ought then to appear 
 as accessaries and not as principals, and the real 
 plaintiff ought neither to be clothed with their 
 power nor subjected to their influence. While 
 this indulgence seems due to plaintiffs on the one 
 hand, equal care should be taken of the interest 
 of defendants on the other. Whatever shape the 
 notice, writ, or summons, with which a defendant 
 is served at the beginning of an action may be 
 made to assume, it should be couched in as few 
 and plain words as possible. It should be directed 
 personally to himself, and should set forth the 
 complaint which has been made against him, and 
 where and when he should appear to answer it. It 
 is likewise reasonable that he should be made 
 acquainted with the consequences of his disobedi- 
 ence ; and in case of negligence or contumacy the 
 steps taken to enforce the order of the court should 
 be as few, prompt, and efficient as they can easily 
 be rendered. To what precise extent the process 
 used in the Common Law Courts for compelling 
 the appearance of a defendant has departed from 
 these standard rules, is not here made a question. 
 The inference intended to be drawn from the 
 particulars which have been mentioned is, that 
 this departure has become so considerable, as to
 
 112 ON THE PRESENT STATE OF THE 
 
 afford just ground for revising the whole of this 
 part of our judicial procedure, with a view either 
 to correct the abuses which may have glided into 
 the practice of each of the courts, or to devise one 
 uniform system for their general direction. 
 
 2. As it is the object of the writ to compel the 
 defendant to appear in court at the time specified, 
 either in person or by counsel, to answer to the 
 charge brought against him, it was antiently the 
 practice for himself or his counsel then to appear 
 and make his defence orally at the bar. " This 
 " method of pleading viva voce, universally in use 
 " among the early European judicatures, and, in- 
 " deed, the natural practice of all countries where 
 " the arts of civilization have made little progress, 
 " certainly prevailed in the English Courts in the 
 " reign of Henry III. and is generally supposed to 
 " have remained there till a much later era. These ( 
 " oral pleadings were delivered either by the party 
 " himself or his pleader, called narrator and advo- 
 " catus; and it seems that the rule was then esta- 
 " blished that none but a regular advocate, or, ac- 
 " cording to the modern phrase, barrister, could 
 " be a pleader in a cause not his own. It was the 
 " office of the Judges to superintend, or according 
 " to the allusion of a learned writer, to moderate 
 " the oral contention thus conducted before them. 
 " In doing this, their general aim was to compel 
 " the pleaders so to manage their ultimate allega- 
 " tions, as at length to arrive at some specific point 
 " or matter affirmed on one side, and denied on the 
 " other. When this matter was attained, if it
 
 CIVIL LAW OF ENGLAND. ] 13 
 
 " proved to be a point of law, it fell, of course, to 
 " the decision of the Judges themselves, to whom 
 " alone the adjudication of all legal questions be- 
 " longed; but if a point of fact, the parties then 
 " by mutual agreement referred it to one of the 
 " various methods of trial then practised, or to 
 " such trial as the Court should think proper. 
 " This result being attained, the parties were said 
 "to be at issue, ad exitum, that is, at the end of 
 " their pleading. The question so set apart for 
 " decision, was itself called the issue; and was 
 " designated according to its nature, as either an 
 " issue in fact, or an issue in law. The whole pro- 
 " ceeding then closed, in case of an issue in fact, 
 " by an award or order of the Court, directing 
 " the institution, at a given time, of the mode of 
 " trial fixed upon; or in case of an issue of law, 
 '/ by an adjournment of the parties to a given day, 
 " when the Judges should be prepared to pro- 
 " nounce their decision. During this oral alterca- 
 " tion, a contemporaneous minute in writing was 
 " drawn up by one of the officers of the Court, on a 
 " parchment roll, containing a transcript of all the 
 " different allegations of fact, to the issue inclusive. 
 " And in addition to this, it comprised a short notice 
 " of the nature of the action, the time of the ap- 
 " pearance of the parties in Court, and the acts 
 " of the Court itself during the progress of the 
 " pleading. The official minute of the pleading, 
 " and other proceedings, thus made on the parch- 
 " ment roll, was called ' The Record.' As the
 
 114 ON THE PRESENT STATE OF THE 
 
 " suit proceeded, similar entries of the remaining 1 
 " incidents in the cause were, from time to time, 
 " continually made upon it ; and, when complete, 
 " it was preserved as a perpetual, intrinsic, and 
 " exclusively admissible testimony of all the judi- 
 " cial transactions which it comprised. From the 
 " beginning of the reign of Richard I. commences 
 " a still extant series of records, down to the pre- 
 " sent day; and such, as far back as can be traced, 
 " has always been the stable and authentic qua- 
 " lity of these documents in contemplation of the 
 " law."* 
 
 This part of the action by which, in civil cases, 
 the subject in dispute between the plaintiff and 
 defendant is brought to issue, still receives in 
 common language the name of special pleading. 
 Special pleadings are seldom drawn now by bar- 
 risters, but generally by gentlemen who intend to 
 be afterwards called to the bar, whose attention 
 during the early part of their professional course 
 is exclusively devoted to their preparation. If 
 special pleading is estimated by the precision 
 which it has introduced into the discussion and 
 adjudication of causes, it appears to be a branch of 
 Common Law procedure which is entitled to 
 very great commendation. No other country can 
 perhaps be pointed out, where the matters in dis- 
 pute between the plaintiff and defendant, whether 
 
 * Stephen, on the Principles of Pleading, p. 29 among the 
 most scientific treatises yet published on any branch of English 
 law.
 
 CIVIL LAW OF ENGLAND. H5 
 
 consisting of questions of fact, or questions of law 
 arising upon facts mutually admitted, are so dis- 
 tinctly brought to issue as in England. But the 
 extremes to which an excellent plan may be car- 
 ried, either defeats the end for which it was intro- 
 duced, or may be made to cost more than the at- 
 tainment of the end is worth. Subtantial justice 
 may be as effectually defeated by excessive nicety 
 on the one hand, as by the greatest laxity on the 
 other. Whether this is the case with the present 
 system of special pleading or not, the rules by 
 which the exactness it produces are secured, have 
 been thought so unnecessarily strict, that for up- 
 wards of 200 years they have been made the sub- 
 ject of the severest animadversion. 
 
 Lord Coke observed, about the end of the 15th 
 century, " That in the reigns of Edward II., Ed- 
 " ward I. and upwards, the pleadings were plain 
 " and simple, but nothing curious, evermore hav- 
 " ing chief respect to matter and not to forms of 
 " words. In the reign of Edward III. pleadings 
 " grew to perfection, both without lameness and 
 " curiosity ; for then the judges and professors of 
 " the law were excellently learned men, and the 
 " knowledge of the law flourished."* Fifty years 
 after him, Lord Hale complains of their having 
 become far more complicated. In speaking of the 
 times between Henry IV. and Henry VII. he says, 
 " Though pleadings in the times of those kings 
 
 Coke upon Littleton, 304 b. 
 12
 
 116 ON THE PRESENT STATE OF THE 
 
 *' were far shorter than afterwards, especially 
 " after Henry VIII., yet they were much longer 
 " than in the time of Edward III., and the plead- 
 " ers, yea, and the judges too, became somewhat 
 " too curious therein, so that art and dexterity of 
 " pleading, which in its use, nature, and design, 
 " was only to render the fact plain and intelligible, 
 " and to bring the matter to judgment with a con- 
 " venient certainty, began to degenerate from its 
 " primitive simplicity and the true use and end 
 " thereof, and to become a piece of nicety and cu- 
 " riosity, which how these latter times have im- 
 " proved, the very length of the pleadings, the 
 " many and unnecessary repetitions and miscar- 
 " riages of causes upon small and trivial niceties 
 " in pleading, have too much witnessed. The 
 " reasons whereof seem to be these, first, because 
 " in antient times the pleadings were drawn at 
 " the bar, and the exceptions also taken at the 
 " bar, which were rarely taken for the pleasure or 
 " curiosity of the pleader, but when it was appa- 
 " rent the matter excepted to was the very merit 
 " and life of the cause, and purposely omitted or 
 " mispleaded because the matter would bear no 
 " better : but now the pleadings being first drawn 
 " in writing, are drawn to an excessive length, 
 * e and with very much care and laboriousness en- 
 " larged, lest it might afford an exception not 
 " intended by the pleader, and which could easily 
 " be supplied from the truth of the case, lest the 
 " other party should catch the advantage, which
 
 CIVIL LAW OF ENGLAND* 117 
 
 " commonly the adverse party studies, not in con- 
 *' templation of the merits or justice of the cause, 
 " but to find a slip to fasten upon ; though in 
 " truth either not material to the merits of the 
 " plea, or at least not to the merits of the cause.* 
 " The inconveniences in the multiplicity, and in- 
 " conveniences of suits and actions as the present 
 " state of things stands, and the means how to 
 " rectify it,"f also forms one of the heads which 
 that admirable person intended to have discussed 
 in his treatise on the amendment of laws, but 
 which he unfortunately did not live, to finish. 
 Shepherd, who wrote about the same period, both 
 admits the evil and proposes a remedy. His 
 words are these : " It is objected the pleadings, 
 " after the appearance, and between it and the 
 " judgment, are very tedious, chargeable, and 
 " dangerous, because many, and these very nice 
 " and curious; so that sometimes by the mistake of 
 " one word, or not continuing the action one term, 
 " a good cause is lost, and the plaintiff undone by 
 " his prosecution. And this long pleading is 
 " worse in an action of covenants for breach of 
 " covenants, actions of the case for nuisances, 
 " and in avowries; and for a very small defect in 
 " some circumstance in the declaration, the de- 
 " fendant will demur to it, and put the plaintiff to 
 " begin all again." " It is offered as to the cure 
 " hereof that these things be considered : 1. To 
 
 * Male's History of the Common Law, p. 172. 
 t Ilargrave's Juridical Tracts, p. 275.
 
 118 ON THE PRESENT STATE OF THE 
 
 " shorten the pleadings, and to have set forms set 
 "- down for declarations and pleas, to which all 
 " the declarations and pleas in all cases shall be 
 " reducible, or at least to shorten the pleadings 
 " where they are so tedious. 2. That no excep- 
 " tion be against, nor advantage taken of any 
 " pleadings, but within eight days after it, and 
 " then that it be amended by the Court. 3. That 
 " no demurrer be to any declaration for any imper- 
 " fection in matter of form, if the substance be set 
 " down. 4. To shorten the degrees of proceed- 
 "ings on days of pleadings."* The length and 
 intricacy of pleadings must still have been regarded 
 as a serious grievance, for they are thus spoken 
 of by a writer who lived near a century afterwards. 
 " As to special pleadings at law, I humbly offer 
 " it to consideration, whether it would not be a 
 " great happiness to the suitors to take them away 
 " entirely, and that the general issue should be 
 " pleaded in all cases. The only use I could ever 
 " conceive of special pleadings (besides the great 
 " gains they bring to the attorney, officers, and 
 " counsel) is to reduce the matters in difference 
 " between the parties to a single question, and 
 " thereby give each of them notice of what is to 
 " be proved and defended at the trial ; otherwise 
 " they might meet there as unequally matched as 
 " when a man challenges another without naming 
 " the weapon, and then brings a pistol, and the 
 " other only a sword. But if either party be 
 
 * Shepherd's England's Balmc, p. 73.
 
 CIVIL LAW OF ENGLAND. 119 
 
 " obliged to give reasonable notice in writing of 
 " any special matter intended to be insisted on 
 " or given in evidence at the trial, I should think 
 " that method would make special pleadings use- 
 " less, and that the merits of the cause might by 
 ." that method be as fairly and effectually tried as 
 " by the help of special pleadings. I have already 
 " mentioned what I take to be the use of special 
 " pleadings, and as to the mischiefs attending 
 " them I need say little, they are so well known. 
 " The preamble of the statute of 27 Elizabeth of 
 " Jeofails has recorded that Parliament's opinion 
 " of them in these remarkable words : That ex- 
 " cessive charges and expences, and great delay and 
 " hindrance of justice, hath grown in actions and suits 
 " between the subjects of this realm, by reason that 
 " upon some small mistaking, or want of form in 
 " pleadings, judgments are often reversed upon writs 
 " of error; and oftentimes upon demurrer in law, 
 " given otherwise than the matter in law and very 
 " right of the cause doth require ; whereby the par - 
 " ties are constrained either utterly to lose their right, 
 " or else, after long time and great trouble and ex- 
 " pence, to revive again their suits. Which act, 
 " and the several other statutes of Jeofails, and the 
 " express provisions made in several other acts 
 " for the defendants to plead the general issue, 
 " and give the special matter in evidence, do all 
 " shew our Parliaments have long had a dislike 
 " to special pleadings. And since by an esta- 
 " blished rule, approved by long experience, the
 
 120 ON THE PRESENT STATE OF THE 
 
 " general issue and nothing else, is always pleaded 
 " in ejectment, where the title of lands and pos- 
 " sessions are in question, I cannot see why it 
 " should not be pleaded in all other cases; especi- 
 " ally on giving notice, as aforesaid, of any special 
 " defence, which is an advantage the parties in 
 " ejectment are not bound to give each other."* 
 
 At a still later period it would appear, from the 
 following passage in the Historical Treatise of a 
 S uit at Law, that th e cause of complaint had not then 
 diminished : " Be it as it will, it must be allowed 
 " that the merit would be infinitely great in him, 
 " who should find means to reduce the pleadings 
 " to a more concise and simple form, or chalk out 
 " some method intirely to supply the use of special 
 " pleadings. How many instances may be given 
 " where, by pleading generally, a cause might have 
 " been tried upon an issue of no more than 10, or 
 " 12, or 14 sheets, which by special pleadings has 
 " been spun out to 100, 150, or 200 sheets, and 
 " which, where the matter m dispute has not been 
 " above five shillings value, has cost the party 
 " 200. Is this unknown to the law ? Is it not 
 " enough to deter any man from taking a remedy 
 " to protect his right and property ? If what 
 " these learned judges have said was before the 
 " act for pleading several matters, what shall we 
 " say now, when special pleadings are so greatly 
 " increased, and are drawn with so much labour 
 
 * Proposals for remedying the great Charge and Delay in Suits 
 at Law and in Equity, by an Attorney, London, 1725.
 
 CIVIL LAW OF ENGLAND. 
 
 " and nicety, and so vastly spun out as to render 
 " an issue of such prodigious length ?"* 
 
 These authorities seem sufficient to shew that 
 valuable as the system of special pleading is ad- 
 mitted to be, a strong sense of its imperfections 
 has long been felt and expressed, accompanied with 
 an anxious desire for its reformation. That this 
 should be the case, will not to any one who opens 
 a practical treatise on the subject appear at all 
 surprising. The multitude of distinctions and re- 
 finements which have been accumulated by usage, 
 statutes, and the decisions of the Courts, have 
 rendered special pleading singularly prolix and 
 mysterious. They have had another effect still 
 more to be lamented : the extreme technical ac- 
 curacy with which every part of the pleadings 
 must be drawn, together with the numerous and 
 curious precautions which must be taken to in- 
 sure their sufficiency, instead of affording either 
 to the parties or their advisers that plain and dis- 
 tinct information respecting the real grounds of 
 the action or defence against it, to which they are 
 reciprocally entitled, have caused or increased that 
 very uncertainty and perplexity which they are 
 intended to prevent. Perhaps no better method 
 could be adopted of bringing back special plead- 
 ing to its true end and object, than to undo part 
 of that which has been already done. It may 
 be hard to say to what precise extent the niceties 
 and distinctions which have grown up in the sys- 
 
 * Boole's Suit at Law, p. 121.
 
 122 ON THE PRESENT STATE OF THE 
 
 tern might safely be removed, but it is impossible 
 to take the most cursory survey either of the 
 form or component parts of the plaintiff's declaration, 
 which is the first as well as most important part 
 of the pleadings, without being strongly impressed 
 with a conviction that in various particulars it is 
 capable of considerable simplification and amend- 
 ment. 
 
 The form of a declaration is determined by the 
 nature of the action. In no two sorts of action 
 is its form precisely the same. To comprehend 
 therefore, the variety of forms of & declaration, it is 
 necessary to attend to the chief sorts of actions 
 which are now in use. Actions are divided into 
 real, personal, and mixed. Real actions are of four 
 different sorts, writ of entry, writ of right, writ of 
 formedon, and writ of dower. Personal actions may 
 arise either ex contractu or ex delicto. Those which 
 arise ex contractu are the actions of assumpsit, debt, 
 covenant, detinue, and account, which last is now 
 seldom, if ever, used. Those which arise ex de- 
 licto, are case, trover, detinue, replevin, and trespass. 
 Of mixed actions, there are only two which it 
 seems necessary to mention, ejectment and waste. 
 
 Upon the four sorts of real actions it may be 
 sufficient to observe that they are scarcely ever 
 resorted to but when they cannot be avoided. 
 That of dower is occasionally, though seldom, 
 employed, and that of entry, right, and formedon, 
 still more rarely. Ejectment has in those cases 
 where there has not been an adverse possession 
 for twenty years, been so modified as to supply
 
 CIVIL LAW OF ENGLAND. 123 
 
 the place of a. writ of right, and it would have been 
 desirable if it could have been so modified as to 
 do so universally. The cumbrousness and diffi- 
 culty of some real actions has caused them to be fre- 
 quently forsaken for others in which there is less pe- 
 culiarity and strictness, and it is more than probable 
 the same lot would have awaited many others which 
 are still in vogue, if two or three brief and well- 
 contrived general forms of action had been intro- 
 duced and encouraged. With respect to the five 
 actions which arise ex contractu, only four of them 
 are of any use. As accounts are now generally 
 settled by Bill in Equity, the action of account 
 has, in a great measure, fallen into disuse.* And 
 with respect to the remaining four, it may be 
 doubted whether there is any solid reason for 
 splitting them into four different sorts. Assumpsit 
 is an action for the recovery of a sum of money 
 in the shape of damages for non- performance of 
 a parol or simple contract. The action of debt 
 is also for the recovery of a sum of money, with 
 this difference, that it is specifically due as a 
 debt, and usually secured by deed; and as the 
 action of covenant is always for damages, which 
 either are or may be rendered certain, there is per- 
 haps no other reason for such a separate action, 
 except that it is necessary to be supported by a 
 contract under seal.-\ That different sorts of proof 
 must be required in different actions for debt is 
 abundantly manifest ; but that this should in any 
 
 * Sclwyn's Nisi Prius, v. i. p. 1. 3d edit, 
 t 1 Chitty on Pleading, p. 88.
 
 124 ON THE PRESENT STATE OF THE 
 
 two cases create a difference in the form of the 
 actions themselves is not apparently requisite ; 
 and that the circumstance of one claim being 
 constituted by bond and another by a contract 
 tinder seal should have this effect, seems still 
 more unnecessary. Subtle distinctions like these 
 always prove eventually inconvenient. Practi- 
 tioners themselves sometimes hardly know how 
 to preserve the boundaries between debt and 
 assumpsit* nor between covenant and debt,-\ nor 
 between covenant and an action on the case for a 
 tort.\ With respect to the action of detinue, though 
 the object of it is to recover the possession of the 
 identical thing for which the action is brought, 
 yet the remedy it gives is of so inept a nature, 
 that the object cannot be obtained if the defendant 
 chooses to resist it. It is distinctly laid down 
 that it is in the election of the defendant, 
 " whether he will deliver the specific goods or 
 " pay the value thereof and damages for the de- 
 " tention/' Respecting actions which arise ex de- 
 licto, the distinction between those in trespass, 
 where the injury is immediate and direct, and 
 those on the case where the injury is mediate and 
 consequential, the separation between them be- 
 comes occasionally imperceptible;! at least, it 
 is difficult for the plaintiff to choose between the 
 two, as well as in those instances where it is 
 
 * Chitty on Pleading, 94, 97, 10?. 
 
 t Id. 110 and 111. J Id. 115. 
 
 Selwyn's Nisi Prius, v. i. p. 608. 3d edit. 
 
 || Chitty on Pleading, 122, 126, 136.
 
 CIVIL LAW OF ENGLAND. 125 
 
 doubtful whether the injury originated in wilful 
 misconduct, or arose from negligence. In actions 
 of this nature, as between those of trespass, case, 
 replevin, trover, and detinue ; or between case and 
 assumpsit, trover, and trespass, it may certainly be 
 said that the plaintiff has it in his power to take 
 his choice among the remedies which the law 
 affords ; but if this is to be coupled with the 
 risk of one or two nonsuits, together with the ex- 
 pense and delay which they occasion, he will 
 soon find himself, like Narcissus in the fable, im- 
 poverished by this perplexing plenty. 
 
 Quid faciam ? roger, anne rogem ? quid deinde rogabo ? 
 Quod cupio mecum est, inopem me copia fecit. 
 
 Only that division of actions which is called 
 mired remains to be noticed, and the two actions 
 comprehended under it which are most familiarly 
 known are the actions of ejectment and waste. As 
 the action of ejectment is that by which titles to 
 land are now usually tried, it is on that account 
 deserving of some attention. This action has un- 
 dergone various successive changes since its in- 
 troduction in the reign of Edward III.,* and the 
 Court of Chancery at one time gravely doubted 
 whether one of the steps taken in it did not 
 amount to the statutory crime of maintenance.f It 
 does not begin like other actions by suing out a writ, J: 
 but by a declaration which is delivered by the 
 person claiming the land to the person actually in 
 
 * Adams on Ejectment, p. 7 14. t Id. 179- 
 t 1 Chancery Reports, App. 39.
 
 126 ON THE PRESENT STATE Of THE 
 
 possession, and in its subsequent stages bears little 
 analogy to the manner in which other actions are 
 conducted. In this declaration two fictitious per- 
 sons, A and B, are introduced on the occasion, 
 and made plaintiff and defendant. A. alleges 
 himself to have received a lease for a certain 
 number of years from the real claimant, and com- 
 plains of having been ousted from his possession 
 by B. To this declaration a supposed notice is 
 annexed by B, in which he informs the person 
 actually in possession of the land of these pro- 
 ceedings, and advises him to apply to the court 
 for liberty to defend the cause, as he himself 
 having no right shall leave it undefended. If 
 the possessor does not within a certain space 
 make this application, judgment is given against 
 B the fictitious defendant, and the claimant is 
 forthwith put into actual possession. If the posses- 
 sor asks leave to defend the action, the court will 
 only grant it upon the following conditions. As 
 there are four requisites to ejectment, title, lease, 
 entry and ouster, and as the three last of these are 
 fictitious, the possessor is obliged to confess that 
 he will not dispute them, but proceed to defend 
 himself on the strength of his title alone. The 
 real defendant then takes place of the fictitious 
 one, and the subsequent proceedings follow the 
 same course with those in other cases. Such is 
 the action of ejectment, " introduced," as Lord 
 Mansfield has described it, " within time of me- 
 " mory, and moulded gradually into a course of 
 " practice by rules of the courts. The same au- 
 " thority which brought it thus far, may certainly
 
 CIVIL LAW OF ENGLAND. 127 
 
 "'carry it to a higher degree of perfection, as ex- 
 " perience happens to shew inconveniences or 
 " defects."* Its defects may really be said to con- 
 sist in its redundancies. As happens on many other 
 occasions in the law of England, there are twice 
 as many characters and incidents introduced as 
 contribute to the advancement of the object of 
 the piece. Allow all mention of lease, entry, and 
 ouster, as well as of the supposed plaintiff and de- 
 fendant, to be suppressed ; and two fictitious per- 
 sons, three fictitious proceedings, and all the con- 
 fusion, expence, and delay created by their useless 
 interposition will in future be avoided. There will 
 then remain the only necessary parties in the action 
 of ejectment, the claimant of the lands on the one 
 hand, and the possessor on the other ; and on the 
 former delivering to the latter the declaration which 
 contains his claim, no reason can be imagined why 
 they should not proceed to contest the merits of it 
 exactly as they do at present. In addition to 
 this it may be observed, that if any method could 
 be devised by which all persons claiming any 
 interest in lands should be entitled to maintain an 
 action of ejectment, and if nothing but the 20 
 years possession required by 21 James I. c. 16.' 
 could bar its prosecution, it would become the 
 more useful ; or an amendment of the writ of 
 right might supersede it altogether. 
 
 Besides the particular objections which pre- 
 sent themselves to the subordinate classification 
 
 * 3 Burrow's Reports, 1195.
 
 128 ON THE PRESENT STATE OF THE 
 
 of actions, others, perhaps still better warranted, 
 may be urged against its more general divisions. 
 The distinction between actions ex contractu and 
 ex delicto seems to have no just foundation. The 
 non-performance of one infers no more real 
 criminality than that of the other. It is true 
 that in one of the actions ex delicto it has ridi- 
 culously become necessary to allege that the 
 act complained of was done vi et armis et contra 
 pacem domini regis, but not one of these ac- 
 tions is at all of a criminal nature, and to class 
 them as such, serves only to destroy the differ- 
 ence which exists in most men's minds between 
 crimes and other offences. Even the distribution 
 of actions into real, personal, and mixed, however 
 universally it may have subsisted, is not very sa- 
 tisfactory. It might just as well have been made 
 to depend on the means of proof or nature of the 
 remedy provided, and not one of the three seem 
 to rest upon any principle either of reason or con- 
 venience. If the forms of actions could in any 
 way be simplified, either by breaking down some 
 of the walls of partition which separate those 
 which now exist, or by introducing two or three 
 of those general forms of action that have been 
 mentioned, allowing plaintiffs full liberty to be- 
 take themselves either to the old or new as they 
 might judge expedient, such a measure would 
 perhaps not only be useful in itself, but advan- 
 tageous in every subsequent stage of the pleadings. 
 If the plaintiff had more than one cause of action 
 against a defendant at the same time, he would
 
 CIVIL LAW OF ENGLAND. 129 
 
 by that means be relieved from the difficulty under 
 which he is now placed of conjoining them or 
 electing between them ;* and a defendant would 
 be able to set forth good defences with greater fa- 
 cility. It has been justly observed that " some' 
 " doubt may reasonably be felt with respect to 
 " the advantage of that part of the system which 
 " relates to the singleness of the issue. Provided 
 *' only that a party be restrained from raising 
 " issues inconsistent with each other, or such as 
 " he knows to be without foundation in fact, it 
 " may be questioned whether any sufficient con- 1 
 " siderations of utility or convenience can be' 
 " urged at the present day, in favour of the object 
 " of singleness. At all events some presumption 
 " must arise against the value of this object, in 
 " modern pleading, when we recollect that the 
 " long permitted use of several counts, in respect 
 " of the same cause of action, and the -provision. 
 " of the statute of Anne, allowing the use of se- 
 " veral pleas, have declared it as the sense both 
 " of the bench and legislature, that if the original 
 " principle deserved to be retained, it required at 
 " least material mitigation. However, it is clear 
 " that the principle of singleness is so far, at 
 ** least, a right and valuable one, as it may tend to 
 l< prevent the parties from offering inconsistent 
 " allegations, or such as they may know to be 
 " false. For though the interests of justice seem 
 ft to require, in many cases, the allowance of se- 
 
 * Chittyon Pleadings, p. 1<)9. 
 K
 
 130 ON THE PRESENT STA^TE OF THE 
 
 " veral counts or pleas in respect of the same de- 
 " mand, they are, on the other hand, directly op- 
 " posed to the allowance of repugnant ones and 
 " where one of the matters alleged must evidently 
 " be false, the party should, of course, be obliged 
 " to make his election between them : and so in 
 " allowing a party to make different allegations, 
 " he ought, if possible, to be excluded from such 
 " as (whether inconsistent or not with what has 
 " been previously pleaded) he must know to be 
 " without foundation in fact. Yet these, which 
 " are perhaps the only beneficial results that can 
 " flow from the principle of singleness, the pre- 
 " sent state of the law against duplicity, unfor- 
 " tunately fails to produce. For first, a Plaintiff 
 "is at liberty to adopt as many counts as., he 
 " pleases, however apparent it may be that the 
 " cases which they respectively state, cannot all 
 " be true. So a defendant is allowed, under the 
 " provision of the statute of Anne, to plead, with 
 " scarcely any exception, matters directly iiicon- 
 " sistent with each other for example, he .may 
 " plead, in trespass for assault and battery, not 
 "guilty, (namely, that he did not commit, the 
 '* trespasses), and also, son assault demesne, 
 " viz. that he committed them in self defence 
 " or, in debt on bond, non est factum, (viz. 
 " that he did not execute the deed,) and also, 
 " that he executed it under duress of imprison- 
 " ment. Again, a party is not restrained by the 
 " present system from adding, to his true case, 
 " another that, though consistent with it, he knows
 
 CIVIL LAW OF ENGLAND. 131 
 
 " to be false. And, accordingly, a defendant, at 
 " the same time that he pleads a special plea, 
 " founded on his real matter of defence, almost 
 " always resorts to the general issue, or some 
 " other plea by way of traverse, in order to put 
 " the plaintiffs to the proof of his declaration 
 " without having, in truth, the least reason to 
 " deny the allegations which it contains. The 
 " statute of Anne, indeed, provides a check 
 " against this, by a provision of which the gene- 
 " ral effect is as follows that, where the defen- 
 " dant has pleaded several pleas, and the issue 
 " upon any one of them is found for the plaintiff, 
 " the Court may give the plaintiff, the costs of 
 " every such issue, unless the judge of Nisi Prius 
 " shall certify that the defendant had probable 
 " cause to plead the matter found against him. 
 " But the construction and effect given to this 
 " provision, in practice, seem to have rendered 
 " it inadequate to the object which it contem- 
 " plates."* What were the circumstances which 
 led to such needless precision respecting the 
 singleness of the issue in actions, or the exces- 
 sive variety of forms which actions might be 
 made to assume, it would now be difficult to con- 
 jecture. That all the variety of forms of action 
 under which we now labour, was believed to be 
 necessary, is indisputable. The 1 3th of Edward I. 
 c. 24. enacts, " that if it shall fortune in the 
 " Chancery that in one case a writ is found, and 
 
 * Stephen on Pleading, p. 457- 
 K2
 
 132 ON THE PRESENT STATE OF THE 
 
 " in the like case falling under like law and re- 
 " quiring like remedy is found none, the clerks 
 " of the Chancery shall agree in making the writ, 
 " or adjourn the plaintiff until the next parliament; 
 " and that the cases be written in which they can- 
 " not agree, and that they shall refer such cases 
 " until the next parliament ; and by consent of 
 " men learned in the law a writ shall be made, lest 
 " it might happen after, that the court should 
 " long time fail to minister justice unto complain- 
 " ants," and even the Masters in Chancery them- 
 selves, the Six Clerks, and Cursitors have all been 
 employed in devising separate writs for the redress 
 of separate wrongs and injuries. It is curious that 
 in the Roman Law the same variety of actions should 
 have prevailed as in our own. The Latin authors 
 are full of passages which shew the exactness 
 which was necessary in the form of an action;* 
 and the favours which the republic bestowed upon 
 Gnaeus Flavius for the mere publication of the 
 forms contained in the precedent book of his mas- 
 ter Appius Claudius, which he stole or copied, 
 strongly testify the degree to which the body of 
 the people must have been vexed by this unneces- 
 sary source of embarrassment : " Postea cum Ap- 
 " pi us Claudius proposuisset et ad formam rede- 
 " gisset has actiones, Gnaeus Flavius scriba ejus li- 
 " bertini filius, subreptum librum populo tradidit, 
 " et adeo gratum fuit id munus populo, ut tribunus 
 " plebis fieret et senator et sedilis curulis."f The 
 
 * Several passages Are quoted in Adam's Roman Antiquities, 
 p. 228. 
 
 t Digest. Lib. 1 . Tit. 2.
 
 CIVIL LAW OF ENGLAND. 133 
 
 object of this variety of actions is laudable, but 
 the means taken to attain it are preposterous in 
 theory, and in practice have produced an effect 
 the very reverse of that which was intended. 
 There are at present at least 15 well-known 
 forms of action, and it might just as well be 
 contended to be necessary and convenient to 
 admit suitors into court by 15 different doors, 
 as to prefer their complaints before it by 15 diffe- 
 rent sorts of action. The commissioners appointed 
 in 1823 to inquire among other things into the 
 best means of improving the forms of pleading in 
 Scotland, received the following answer from one 
 of the Judges of the Court of Session, whose opi- 
 nion, both on account of its own intrinsic merit, 
 and his reputation as a scientific and practical 
 lawyer, well deserves attention: " In respect to 
 " the simplification of proceedings, I have to 
 " observe, first, that I do not see why all civil 
 " actions might not come before a Lord Ordi- 
 " nary in the first instance directly. I think 
 " all would be as well done in the ordinary mode 
 " of process, and that thus complexity and ex- 
 " pence would be avoided, and time be saved to 
 " the court : second, I do not see any sufficient 
 " reason why all civil actions might not originate 
 " by one form of libelled summons or petition, 
 " instead of the variety we have at present : third, 
 " I do not see why all actions on coming into court 
 " might not proceed in the same way by defences, 
 " &c. as above-mentioned, with the exception of 
 " interdicted actions, which must be brought be-
 
 134 ON THE PRESENT STATE OF THE 
 
 " fore the judge by bill or petition."* A still 
 stronger confirmation of the practicability of sim- 
 plifying the form of actions is derived from the 
 usage of the Court of Chancery, where though a 
 very complete, and in some respects too compli- 
 cated system of pleading is established, no traces of 
 the varieties of action which prevail in common 
 law are to be found. One form of bill serves for 
 all occasions whatever the nature of the relief 
 prayed may be, and each plaintiff is permitted to 
 adapt his narrative to the circumstances of his 
 own particular case. The privilege now given to 
 a defendant by almost all local and many general 
 acts,| to plead the general issue, and put himself 
 upon the country without specifically replying to 
 the counts in the declaration tends very strongly 
 to the same conclusion. The fact of the defendant 
 being suffered in so many of these acts to plead 
 the general issue in reply to the charge made, 
 seems conclusively to prove both that the extra- 
 ordinary specialty which is always required in the 
 charge, and also in the defence in all but excepted 
 cases, is unnecessary. Courts of Common Law, 
 by allowing the defendant to plead the general 
 issue so freely, may perhaps have shewn him too 
 much indulgence. They may have proceeded from 
 extreme strictness on the one hand, to a degree of 
 laxity no less prejudicial on the other. A bill was 
 
 * Opinion of Lord Mackenzie, Appendix to Lords' Report of 
 the Commissioners appointed to inquire into the Appellate Juris- 
 diction, p. 195. 
 
 t See particularly 5 Geo. II. c. 30, & 49Geo. III. c. 121. sec. 10.
 
 CIVIL LAW OF ENGLAND. 135 
 
 brought into the House of Commons between 
 1770 and 1780 on the propriety of permitting the 
 defendant to plead the general issue in all cases, 
 which was supported by Wallace then Attorney 
 General, and opposed by Dunning.* There 
 seems to be much doubt whether such a measure 
 would have been beneficial. " Another feature of 
 " doubtful character in the system of pleading," 
 it is said, " is the wide effect which belongs, in 
 " certain actions, to the general issue. In debt on 
 " simple contract in assumpsit and trespass on 
 " the case, in general the general issue embraces 
 " almost every ground of defence to which the 
 " defendant at the trial may chuse to resort the 
 " questions offered by these issues, being, in effect, 
 " nearly these whether the defendant be indebted 
 " to the plaintiff, as alleged in the declaration, or 
 " he be liable to the plaintiff's demand, as set forth 
 " in the declaration. Now, these questions are 
 " so general and vague, as to produce, but in 
 " a limited and inferior degree, the advantages 
 " which attend the production of a more strict and 
 " special issue. For first, they do not fully effect 
 " the separation of matter of fact from matter of 
 " law. To understand this, it must be considered 
 " that though the parties cannot go to trial on a 
 " mere question of law, (a traverse of matter of 
 " law not being allowable,) yet it is in the nature 
 " of many issues in fact, to involve some subordi- 
 " nate legal question, the decision of which is es- 
 " sential to the decision of the issue. And the 
 
 * Butler's Reminiscences, p. 32.
 
 136 ON THE PRESENT STATE OF THE 
 
 " wider and more general the form of the issue, 
 " the more likely it is to comprise these subordi- 
 " nate questions of law. For example in an 
 " action of debt on simple contract or assumpsit, 
 " if the defendant rely on a release executed by 
 " the plaintiff, he may give this in evidence under 
 " the general issue (nil debet, or non assumpsit), 
 " because it tends to shew that he is not indebted, 
 " or is not liable, as alleged and if the plaintiff's 
 " answer to the release, be, that it was obtained 
 " by duress, this will, of course, be also offered 
 " in evidence under the same issue. Upon this 
 " point of duress, two questions may be supposed 
 " to arise first ; whether the execution of the 
 " deed under duress would defeat the effect of 
 " the deed secondly, whether the deed were, in 
 " fact, executed under duress. Before the jury 
 " can find a verdict either for the plaintiff or de- 
 " fendant, both these questions must be disposed 
 " of. But the first is a question of mere law, 
 " and their decision upon it must be guided by 
 " the direction of the Judge. Here, then, is a 
 " question of law involved under the issue in fact. 
 " Now, if on the other hand, a form of action be 
 " supposed, in which the pleading is more spe- 
 " cial and the general issue less comprehensive, 
 " for example, the action of covenant, this very 
 " same question will be distinctly developed as a 
 " point of law upon the pleading by way of de- 
 " murrer. For the defendant cannot, under non 
 " est factum (which is the general issue in that 
 ' action), set up the release, but must plead it 
 " specially and the plaintiff must, consequently,
 
 CIVIL LAW OF ENGLAND. < 137 
 
 " plead the duress in reply; and then if the de- 
 " fendant disputes the legal consequence of the 
 " duress, his course is to demur to the replication. 
 " Of such demurrer, occurring in the very case 
 " here imagined, the reader has already seen an 
 " example in the course of this work and to this 
 " he may be again referred for further illustration. 
 " It thus appears, then, that it is the effect of the 
 " wider general issues to render less complete, 
 " than it otherwise would be, the separation of 
 " fact from law. And the inconvenience of this 
 " is felt, in the great frequency with which diffi- 
 " cult legal questions arise for the opinion of the 
 " Judge at Nisi Prius the numerous motions for 
 " new trials consequently made in the Court in 
 " Bank, to obtain a revision of such opinions 
 " and the delay and expence necessarily atten- 
 " dant on a proceeding of this kind, when com- 
 " pared with the regular method of demurrer. 
 " Again, it is an inconvenience arising from gene- 
 " ral issues of this description, that they tend to 
 " conceal from each party the case meant to be 
 " made by his adversary at the trial. Thus, in 
 " the instance above supposed, the plaintiff would 
 " have no notice, from the nature of the issue, nil 
 " debet, or non assumpsit, that the defendant 
 " meant to set up a release, nor would the defen- 
 " dant, on the other hand, have any intimation 
 " that it was to be met by the allegation of du- 
 " ress. And thus is defeated, in some measure, 
 " another of the advantages otherwise attendant 
 " on the production of an issue namely, that 
 " of apprising the parties of the precise nature of
 
 138 DN THE PRESENT STATE OF THE 
 
 " the question to be tried, and enabling them to 
 " shape their proofs without danger of redundance 
 " on the one hand, or deficiency on the other."* 
 An inference which seems naturally to flow from 
 the whole of the preceding observations is, that 
 the mere form of the action has less connection 
 with the real end of special pleading than has 
 commonly been imagined. The contents of the 
 declaration in an action are or ought to be more 
 important than its form, and upon the parts of 
 which a declaration is composed one or two obser- 
 vations shall now be offered. 
 
 A declaration consists of 7 parts, the title, the 
 venue, or place, the commencement, the statement of 
 the cause of action, the counts, the conclusion or 
 prayer, and the pledges to prosecute. The last of 
 these parts ought to be abolished as a repeti- 
 tion of the idle fiction previously noticed ; and 
 upon the first, third, fourth, and sixth of them no 
 remark appears to be requisite, as upon the whole 
 they seem to be sufficiently adapted to their pur- 
 pose. The second, which sets forth the venue, 
 is liable to some objection. The place where 
 the cause of action arises should either be al- 
 lowed by the law to be set forth truly, or should 
 not be required to be set forth at all. In tran- 
 sitory actions the absurdity of the fiction is pe- 
 culiarly striking. To allege that certain facts 
 " took place at Bengal in the East Indies," fol- 
 lowed by a " viz. in the county of Middlesex in 
 " the ward of Cheap," offers a degree of violence 
 
 * Stephen on Pleading, p. 460.
 
 CIVIL LAW OF ENGLAND. 139 
 
 to common sense for which there is no necessity. 
 Whatever learning and ingenuity can urge in de- 
 fence of the application of the fiction has been ad- 
 vanced by Lord Mansfield in the case of Fabrigas 
 and Governor Mostyn,* but the objection to 
 the continuance of the fiction at all remains 
 untouched, and it is melancholy to see that 
 accomplished person labouring to demonstrate 
 the wisdom of one of the most awkward con- 
 trivances which was ever invented for the pur- 
 pose of enabling judges to reach the ends of 
 justice. The fifth part of the declaration is that 
 which contains the counts, and is the most ma- 
 terial of the whole. These counts are merely 
 different versions of the same story, and so rigor- 
 ously does the present system of pleading require 
 a case to be proved in the manner and form in 
 which it is set forth, that these counts often 
 amount to twenty, sometimes to thirty or forty, 
 and in a few instances have nearly reached a hun- 
 dred. It is obvious that all rational certainty or 
 distinctness must disappear among such intermi- 
 nable variations. No case can arise in which they 
 are necessary, and special pleading must have 
 swerved greatly from its legitimate end before 
 such an array of changes could either have been 
 tolerated or attempted. 
 
 Into an examination of the succeeding parts of 
 the pleadings, by which if necessary the attack and 
 defence of the parties may alternately be varied; 
 or of the checks to irregularity in pleading which are 
 afforded by demurrer to any part of the pleading, 
 
 * Cowpcr's Rep. p. 1/6.
 
 140 ON THE PRESENT STATE OF THE 
 
 demurrer to evidence, bills of exceptions, pleas in 
 scire facias, and pleas in error, it would be tedious 
 to enter. Useful as they are, they are all over- 
 loaded with technicalities and refinements. But it 
 is in the form of the action, and in the difficulty 
 attending the preparation of the declaration, that 
 the chief objection to the present mode of plead- 
 ing is to be found. If the forms of action were 
 simplified, or if a few concurrent general forms 
 of action were introduced, which the plaintiff 
 might adopt if he thought proper; and if the 
 number of counts which it is necessary to insert, 
 could be diminished ; a marked improvement would 
 take place in every succeeding stage of the plead- 
 ings, and a cause might be brought to issue with 
 reasonable precision and with much less expense, 
 hazard, and delay, than now attends it. 
 
 3. When a cause is brought to issue, it must 
 either be an issue in law or in fact. If the issue 
 is in law, the facts alleged by the plaintiff being 
 admitted by the defendant, the matter in issue is 
 determined by the Judges. It is only upon an 
 issue in fact, where an affirmation of fact on one 
 side is met by a denial on the other, that the in- 
 terposition of a Jury becomes necessary. To in- 
 dulge in any panegyric on the benefits of the 
 trial by jury is commonly unnecessary, and would 
 here be inappropriate. The affection felt for it by 
 all classes of the community has remained unshaken 
 during every revolution in religion, government, 
 and manners which the country has experienced 
 for upwards of a thousand years. Nothing but 
 the most general and settled conviction of the
 
 CIVIL LAW OF ENGLAND. 141 
 
 relief and protection it is calculated to afford, 
 can account for the continuance of this attach- 
 ment for such a succession of ages. But though 
 it be true that during the whole of this lapse of 
 time trial by jury has been invariably esteemed 
 and cherished, the advantages resulting from its 
 establishment have by no means been always 
 equal. Its utilfty necessarily and essentially de- 
 pends on the intelligence, moderation, firmness, and 
 impartiality with which the duties of jurymen are 
 performed. With these qualities it springs up ; 
 with them it comes to perfection ; and according 
 as they are cultivated or neglected, so must it flou- 
 rish or decline. The numerous acts of parliament 
 which have been passed in this country for the at- 
 taint of jurors attest the danger it has at various pe- 
 riods run from corruption,* and though this particu- 
 lar sort of hazard is not likely to recur, there are 
 Olivers scarcely less alarming to which it still 
 remains exposed. The verdict of a jury may be 
 influenced by passion, caprice, prejudice, or per- 
 verseness, as powerfully as by more sordid con- 
 siderations ; and perhaps their- operation is the 
 more extensive that it is neither so odious nor 
 suspected. In all questions however, whether 
 private or political, every kind of bias which di- 
 minishes that confidence entertained by the pub- 
 lic that the verdict of the jury will be in strict 
 accordance with the evidence, cannot be too 
 
 * 3 Ed. I.e. 38. 1 Ed. 3. st. I.e. 6. 5 Ed. 3. c. 7- 34 Ed. 3. 
 c. 7. 11 Hen. 6. c. 4. 15 Hen. 6. c. 5. 18 Hen. 6. c. 2. 11 
 Hen. 7- c. 24. 12 Hon. 7. c. 2. V9 Hen. 7- c. 3. 11 Hen. 8. c. 1 1. 
 23 Hen. 8.C.3.
 
 142 ON THE PRESENT STATE OF THE 
 
 anxiously guarded against. The qualifications of 
 the individuals who usually serve on juries do 
 not conduce more to the success of jury trial, 
 than the general character and temper of the 
 country in which that institution is established. 
 It never has been supposed that trial by jury could 
 at once be made to start up in perfection in any 
 given state in compliance with the will of a so- 
 vereign or the wishes of its legislature ; or even 
 that it would be found to produce the same ef- 
 fect in every quarter where twelve unobjection- 
 able jurymen could be assembled together. But 
 though considerate men have never entertained 
 such extravagant expectations, it will be found 
 that greater preparation must be made for its in- 
 troduction or extension among any particular peo- 
 ple than has hitherto been anticipated. It not only 
 requires time and experience, but the co-operation 
 of other circumstances which it is rarely practi- 
 cable either to create or controul. Jury trial will 
 succeed in no countries where the inhabitants are 
 rude, thoughtless, or unprincipled. They are not 
 fit for it, and it is not fit for them. None but a vir- 
 tuous and enlightened people with at least a mo- 
 derate share of freedom, and settled principles 
 of right and wrong, are prepared for its reception. 
 Even in states possessed of these advantages, pe- 
 culiarity of disposition or habits may cause recourse 
 to be had to trial by jury, more frequently in one 
 than in another. However valuable it always is, 
 as a protection against injustice, there can be no 
 doubt that it is either in struggles between the 
 crown and the subject, or where damages are to
 
 CIVIL LAW OF ENGLAND. 143 
 
 be assessed for injuries done to person or pro- 
 perty, that its advantages are most eminently 
 perceptible. In countries where causes of this 
 kind are of rare occurrence, other questions of 
 fact may safely be left to the determination of the 
 ordinary judges. This has hitherto been the case 
 in Scotland, and to that circumstance may be 
 ascribed part of the repugnance or indifference to 
 the application of trial by jury in civil causes, 
 which seems still to prevail in that part of the 
 kingdom.* But though all communities possessed 
 of the qualifications which have been specified 
 may not employ trial by jury with equal fre- 
 quency, there are none else where the confi- 
 dence and security which is afforded by this pal- 
 ladium against power and oppression can be fully 
 perceived and appreciated. Even there, trial by 
 jury cannot be maintained in perfection without 
 uninterrupted and vigilant superintendance. Time 
 is perpetually causing or disclosing defects or ir- 
 regularities in its operation ; and even at present, 
 a few of these might be pointed out, which it 
 would be desirable to check or correct whenever 
 there is opportunity. 
 
 The first of these relates to the non-attendance 
 of the greater part of those persons who are or ought 
 to be summoned to serve as jurors. Every man 
 possessed of the requisite qualifications is as much 
 bound to serve his country in the j ury-box as in 
 the field, and the greater the number of its sub- 
 
 * Report of Commissioners on the Appellate Jurisdiction, Ap- 
 pendix, pp. 52. 88. 10?. 151. 155. 1?5. 201. 208. 220. 238.
 
 144 ON THE PRESENT STATE OF THE 
 
 jects a state can train to both these sorts of dis- 
 cipline, its public and private rights will be the 
 more protected and respected. So far is this jury 
 duty from being generally performed at present, 
 that either from imperfection in the way in which 
 jurors are summoned or the facility with which leave 
 of absence is granted, not one qualified person in 
 fifty has even served the office. On the other hand a 
 set of decayed tradesmen or unemployed persons 
 of small property, procure a livelihood and amuse- 
 ment by being in perpetual readiness to undertake 
 it in their stead. No specific mischief it is true 1 
 has hitherto arisen from this irregularity, and it 
 has even been contended that these professional 
 jurymen answer the purpose better than those 
 unpractised or reluctant individuals would have 
 done for whom they have been substituted. If 
 the fact be so, those who follow such a calling 
 ought to be openly recognised by the legislature, 
 and not permitted silently to subvert what has 
 hitherto been considered to be one of the most 
 important branches of our judicial procedure. 
 But the opinion seems to be unfounded. How 
 can it be expedient to throw the distribution of 
 justice in common jury causes into the hands of 
 comparatively mean men, when we find that when- 
 ever a cause of great public interest comes to be 
 tried, these trading jurymen are constantly dis- 
 carded and their place supplied by persons really 
 drawn from the body of the people as according 
 to the letter of the law, and spirit of our consti- 
 tution they invariably ought to be ? No harm 
 and much benefit has always been supposed to re-
 
 JM: CIVIL LAW OF ENGLAND. 145 
 
 suit from the change. As far as experience therefore 
 has gone, it concurs with the deductions of reason 
 in recommending the adoption of more effectual 
 means for compelling all persons to act as jurymen 
 in their turn. It would also have some effect in 
 softening the distinctions of rank, and connecting 
 the different classes of society with one another 
 in the accomplishment of a common object. 
 This alone would be productive of good, which 
 would be still further increased by the disclosure 
 which the discussions which arise would ne- 
 cessarily produce of each other's real manners, 
 habits, and opinions. What is of greater conse- 
 quence perhaps than either, it would make mul- 
 titudes of people, and especially those who live 
 in large towns, more accurately acquainted with 
 the nature of this part of our municipal policy 
 than they ever were before. It may have formed 
 the subject of their conversation, reading, or per- 
 sonal observation, but their notions respecting its 
 nature and properties would have been greatly 
 corrected and enlarged, if they had ever been 
 themselves placed in a jury box, and obliged to 
 assist in returning the verdict according to the 
 evidence laid before them. I hope, therefore, that 
 the bill for consolidating and amending the laws 
 relative to jurors and juries, which was brought 
 into the House of Commons in 1824, and now lies 
 over for consideration, will be speedily passed 
 into a law, and that the new provisions which it 
 contains with respect to special jurors, will at no 
 distant time be extended to jurors of every de- 
 
 L
 
 146 ON THE PRESENT STATE OF THE 
 
 scription, as they are well calculated to promote 
 that regular attendance of qualified persons as ju- 
 rymen which it seems so desirable to secure. 
 
 When the jurors have once been inclosed, they 
 ought not in strictness to separate, either in civil 
 or criminal causes, until their foreman has deli- 
 vered their verdict to the judge, or to some other 
 officer of the court who is in waiting to receive it. 
 In civil causes which it has not been possible 
 to finish at a single sitting, the jury have in a few 
 instances been permitted by the judge to go to 
 their own homes at night and return in the morn- 
 ing ; and even coroners' inquests have since fol- 
 lowed this example. Such indulgence ought to 
 be sparingly granted, and it would perhaps have 
 been wiser if the general rule had never been in- 
 fringed. To permit jurymen to mix with the 
 public, or to be placed in a situation in which an 
 impression may be made upon their minds by any 
 thing else than the evidence laid before them, may 
 lead at last to serious practical inconvenience. 
 The more rigorous their confinement is after they 
 have once been sworn and inclosed, the more ex- 
 peditiously the trial is likely to be brought to an 
 end, and the greater will be the satisfaction 
 afforded by their verdict. 
 
 The next thing to be noticed is the form in 
 which the oath is administered. It is somewhat 
 remarkable that the abstract doctrine of the law 
 of England respecting the obligation of an oath, 
 should have had so little influence on its own 
 practice. The substance of that doctrine is,
 
 CIVIL LAW OF ENGLAND. 147 
 
 that every man may be sworn who understands 
 the nature of an oath and believes in a future 
 state of rewards and punishments ; and that he 
 ought to be sworn, in that manner which has 
 the most binding influence on his conscience. It 
 was finally settled upon this foundation, in a case 
 which underwent the most solemn discussion and 
 determination,* and the reasons upon which the 
 judgment proceeded cannot be read even at this 
 day; without exciting the strongest admiration of 
 the enlightened views and practical wisdom by 
 which they were dictated. It might have been 
 expected, that as it was in this country the es- 
 sence of an oath was first clearly ascertained 
 or judicially announced to consist in its power to 
 bind the conscience, it would there have been admi- 
 nistered in the manner, or with the solemnities, 
 best calculated to fortify this binding obligation. 
 This cannot now be said to be the case. It would 
 be difficult to point out any state in which an oath 
 ever was or is taken with so little ceremony as in 
 England. Among the Jews, the same word which 
 signifies the right hand, is said also to signify an 
 oath; and we learn from different passages of 
 scripture that their manner of taking an oath was 
 by holding up the right hand, and swearing by 
 the name of the Supreme Being. It is also clear 
 that the form of oath used among the Greeks 
 was the most impressive their lawgiver was ca- 
 pable of devising. Tpu? 0fou? o/*i/ui/a 
 
 * 1 Atkins's Rep. 21. 
 L2
 
 148 ON THE PRESENT STATE OF THE 
 
 v, KaOaptnov, Ea><j-T/>K>!<,* says Pollux ; and 
 whatever difference of opinion may prevail re- 
 specting the precise meaning of these epithets, it 
 is evident that they imply an appeal to God in 
 those characters which are principally concerned 
 in the administration of justice. The form of a 
 solemn oath among the Romans was also well cal- 
 culated to create attention. The person taking 
 the oath held a flint stone in his right hand, pro- 
 nouncing at the same time the following words ; 
 " Si sciens fallo, turn me Diespiter, salva urbe 
 " arceque, bonis ejiciat, ut ego hunc lapidem."'|~ 
 Though in some particulars the forms of oath 
 adopted in the different kingdoms of Europe will 
 be found to differ, in most of them there is a re- 
 markable coincidence. In Roman Catholic states 
 the rites of religion are usually called in to add 
 force to the obligation. In other places again 
 where oaths are few, an exhortation is sometimes 
 addressed by the judge to those who are about to 
 be sworn. And, as far as I know, in every coun- 
 try in Europe, whether Protestant or Catholic, 
 except in England, the oath is administered by 
 the judge to the person sworn, the person who 
 takes the oath and the judge himself both stand- 
 ing, and both of them holding up their right hands 
 while the words are repeated. In England none 
 of these forms are observed. The touching of 
 the holy Evangelists, which was substituted by 
 JustinianJ for one of a more impressive nature,^ 
 
 * Pollux, lib. 8. c 12. t Festus, sub vcrbo lapidem. 
 I Novel 74. Novel 12.
 
 CIVIL LAW OF ENGLAND. 14Q 
 
 has ever since continued the principal ceremony 
 in the administration of an oath. At present, 
 when jurymen are sworn, an inferior officer of the 
 court desires them to stand up by six at a time 
 round a New Testament, and when each of them 
 has taken hold of it with his right hand, the officer 
 then pronounces aloud, " You swear that you will 
 <f .well and truly try the issue joined between the 
 " parties, and a true verdict give according to the 
 " evidence, so help you God ;" or in the case oi 
 a witness, " You swear that you will tell the 
 " truth, the whole truth, and nothing but the 
 " truth, so help you God ;" and as soon as each 
 person has kissed the book, in his case the admi- 
 nistration of the oath is ended. Neither judge, 
 juror, nor witness, ever opens his Ups, Nothing 
 else is done by any other person, and even the few 
 words which are uttered are often hurried over 
 with blameable carelessness or precipitation. 
 How far the form of oath now used might be im- 
 proved, or whether in a country where so many 
 oaths must be administered, it would be prudent 
 to attempt its improvement, may not be easy to 
 determine. That no form of oath can overawe the 
 minds of hardened and unprincipled men is un- 
 questionably true ; as it also is that whatever the 
 form of the oath may be, the deposition of a wit- 
 ness must be estimated principally by its intrinsic 
 probability, consistency, and accordance with the 
 rest of the oral and documentary evidence ad- 
 duced. But as long as it is the object of an oath 
 to bind the conscience, nothing by which the con-
 
 150 ON THE PRESENT STATE OF THE 
 
 science can be awakened or coerced ought pru- 
 dently to be neglected. Were the juror or witness 
 obliged to repeat the words of the oath after any 
 other person, the very sound of his own voice 
 would have some effect upon his mind, and make 
 him feel himself more a real party in the transac- 
 tion, and less like a mere spectator of a scene 
 passing before him than he now does. This effect 
 would be still more solemn if the oath were re- 
 peated by the witness or juryman after the judge. 
 The judge also appears to be the proper person by 
 whom the oath ought at all times to be administered. 
 It is to him juries and witnesses principally look, 
 and' both on account of the influence he possesses 
 over those who swear, and the reverence due to 
 the name in which they are sworn, propriety re- 
 quires that it should be dispensed by him as the 
 individual present who is possessed of the highest 
 rank and authority, and that he should not have 
 the power of devolving this part of his duty upon 
 any other person. 
 
 While all due attention ought to be paid to the 
 manner in which oaths are administered, it is 
 acknowledged by the best writers of every coun- 
 try that they should not be too much multi- 
 plied.* The number of them exacted by the law 
 of England has been pushed to an extent which 
 cannot be denied to be revolting. In preferring 
 complaints before magistrates, giving bail, taking 
 
 * Stiernhoeck de Jure Sueonum, p. 115. Blackstone's Com. 
 . iv. p. 137.
 
 CIVIL LAW OF ENGLAND, 151 
 
 out patents, passing public accounts, accepting 
 public offices, and in making voluntary affidavits, 
 the multitude of them exceeds all belief. Scarcely 
 an act of Parliament is passed in which new 
 forms of affidavit are not prescribed, and even the 
 simplest notice served on a party in a law-suit by 
 any clerk in a solicitor or attorney's office, is not 
 valid unless it is certified under a sanction no less 
 cogent than if he were the sole witness against a 
 prisoner tried for a capital offence. The conse- 
 quence is, that excessive familiarity with oaths 
 has destroyed, or essentially impaired that rever- 
 ence which is due to their nature and obligation, 
 and in half the instances in which they are re- 
 quired, they afford little security for the truth or 
 correctness of what is spoken beyond that to 
 which any deliberate statement gives, and per- 
 haps not so much as would be due to that form of 
 solemn declaration used in many parts of the Con- 
 tinent, which might often with so much advantage 
 be substituted in their stead. In every point of 
 view the form and administration of oaths deserves 
 attention, and the more the subject is examined, 
 the more generally will its importance be acknow- 
 ledged. Government have, much to their honour, 
 lately begun to diminish the number of oaths re- 
 quired in the customs and excise, and it is to be 
 hoped their proposed alterations in this particular 
 will not terminate until the necessity of every 
 class which is exacted in any department of 
 public or legal business has been satisfactorily 
 established.
 
 152 ON THE PRESENT STATE OF THE 
 
 As it is the duty of the legislature on the one hand 
 not to impose oaths unnecessarily, it seems to be 
 the duty of every good subject on the other not to 
 refuse to take them on any occasion when for the 
 furtherance of justice or any other weighty reason 
 the legislature has judged them to be requisite. 
 The quakers were the first persons in this country 
 who declined to take an oath, and by the 7 and 8 
 of William and Mary, c. 34, they were released 
 from the penalties to which a refusal previously 
 subjected them, and in civil causes the same effect 
 is given to their solemn affirmation as to an oath 
 taken in the usual form. In criminal causes their tesr 
 timony continues to be rejected altogether. While 
 all persecution for conscience sake ought anxious- 
 ly to be avoided, it is at the same time true, that 
 there should be no relaxation of the fundamental 
 laws by which society is held together, except in 
 a case of clear and paramount necessity. It may 
 be doubted whether in this instance such neces- 
 sity existed. It created an inconsistency in the 
 law for which there does not seem to be sufficient 
 foundation* ; it was an exemption which it might 
 have been foreseen would probably be claimed 
 hy others; and did not long satisfy the parties 
 in whose favour the exemption was permitted. 
 The form of the affirmation which quakers ori- 
 ginally consented to give appears by the 7 and $ 
 of William and Mary, c. 34, to have run in .the 
 following terms : " I A. B. do declare in the pre- 
 
 * Phillips on Evidence, p. 26, 4th td.
 
 CIVIL LAW OF ENGLAND, ;> 153 
 
 <( sence of Almighty God, the witness of the truth 
 " of what I say." When this form had been in 
 use between twenty and thirty years it was al- 
 tered by 8 G. I. c. 6. to the following : " I A. B. 
 " do solemnly, sincerely, and truly declare and 
 " affirm." Both of them are perhaps substan- 
 tially entitled to the denomination of oaths, but 
 the last much less than the first, and the transform- 
 ation it has suffered shows the advantage which 
 is almost invariably taken of indulgence. Lord 
 Hardwicke observed in the instance of a quaker 
 lady, who made an application to him in the court 
 of Chancery, in a case where she hesitated at an 
 oath, which any suitor of another persuasion would 
 have been obliged to take : " But as I have iri- 
 stances in my hand where persons who called 
 " themselves quakers, upon their affirmations be- 
 " ing refused, have brought their consciences to 
 " digest an oath, perhaps Mrs. Gumbleton, as 
 " she goes in danger of her life, may dispense 
 " with the strict rules of her sect, and may be 
 " persuaded to swear likewise. If not, I will 
 " consult the judges upon it."* The same privi- 
 lege was given to the Moravians settled in our 
 North American colonies, by 22 Geo. II. c. 30. 
 Of late, other sects have sprung up professing the 
 same repugnance to oaths with the quakers and 
 Moravians. At the Cork assizes, one Connell, a 
 pawnbroker in that town, was fined 100/. by 
 Baron Pennefather, on the 16th of July, 1823, for 
 
 * 2 Atkiiib's Rep. 70.
 
 154 ON THE PRESENT STATE OF THE 
 
 refusing to be sworn. He admitted he was not a 
 quaker, but said he had scruples, for the truth of 
 which he appealed to the Rev. Dr. Guarry, by 
 whom the statement was confirmed.* On the 
 5th of May, 1824, regular petitions were pre- 
 sented to the House of Lords by the Marquis of 
 Lansdowne and Earl Gosford, from another body 
 in Ireland called Separatists, praying that in all 
 judicial cases they might be placed on the same 
 footing with Moravians and quakers, and that their 
 affirmation might have the full effect and validity 
 of an oath. On the other hand, at one of the late 
 trials for seditious and blasphemous publications, 
 a witness, by making open avowal of atheism, 
 escaped from becoming a witness against the pri- 
 soner altogether. What middle course then is 
 the legislature to steer between those who have 
 no conscience, and those who seem to have too 
 much? The subject is one of extreme difficulty, 
 and so deeply interests all those whose character 
 or property may be affected by witnesses who 
 appear before a judge or jury, that the principle 
 by which the law is to be governed must soon be 
 settled upon a wider and surer basis, than that 
 upon which it now rests. 
 
 4. When the facts of a case have been ascer- 
 tained by a jury, or are admitted in the plead- 
 ings without their intervention, it is then ar- 
 gued before the judges, who afterwards apply 
 the law to the state of facts which is disclosed 
 
 * Courier newspaper of Aug. 21, copied from the Cork Cou,- 
 stitution newspaper.
 
 CIVIL LAW OF ENGLAND. 155 
 
 before them. Even though judgment has been 
 pronounced, a variety of motions may still be 
 made in arrest of judgment, according to the na- 
 ture of the action, and the state of the pleadings ; 
 and it might be worth inquiry, whether it is 
 not practicable to confine these motions with- 
 in narrower limits than those which are pre- 
 scribed to them.* On one occasion on which a 
 motion was made in arrest of judgment, Lord 
 Mansfield observed with that comprehensive- 
 ness and liberality by which his views of ju- 
 risprudence are generally distinguished : " It is 
 " much to be lamented, that in any sort of ac- 
 " tion, the mere inattention or slip of counsel, who 
 " are not always sufficiently attentive upon what 
 ." count the verdict is taken, should be fatal to 
 " the party, contrary to the truth and justice of 
 " the case, the opinion of the judge upon the me- 
 " rits, who tried the cause, and the meaning of 
 " the jury who pronounced the verdict. How- 
 " ever, in civil cases, the rule most certainly is 
 " settled, that where a verdict is taken generally, 
 " and any one court is bad, it vitiates the whole. 
 " It has always struck me, that the rule would 
 " have been much more proper to have said, that 
 " if there is any one count to support the verdict, 
 " it shall stand good, notwithstanding all the rest 
 " are bad. In criminal cases the rule is so, and 
 " one cannot therefore but lament that the re- 
 " verse is adopted in civil cases, because it is as 
 
 * Tidd's Practice, 3d ed. pp. 810814. 1 Chitty on Plead- 
 ing, p. 1.94.
 
 156 ON THE PRESENT STATE OF THE 
 
 *' it were catching justice in a net of form"* What- 
 ever objections it may be thought proper to allow 
 to the form of the action, or any particular part 
 of the pleadings, ought to be presented in an 
 earlier stage of the cause, as they can scarcely 
 ever have any object after judgment has been 
 pronounced, than to elude the ends of substantial 
 justice. 
 
 5. Judgment being once pronounced, it only 
 remains to be carried into execution ; but in one 
 instance, the manner in which that execution is 
 effected, is particularly worthy of attention. It 
 is one of the merciful provisions of the law of 
 England, that a creditor cannot proceed at the 
 same time both against the person and estate of 
 his debtor, and if he chooses to proceed against 
 the person at first, he cannot usually proceed 
 against the estate afterwards. If he elects there- 
 fore to proceed against the person, and obtains 
 a judgment for the debt, he may get the person 
 of his debtor committed to the prison of the court 
 in which the action was instituted, until the debt 
 be paid. The prisons to which debtors are prin- 
 cipally committed, are the King's Bench Prison, 
 which is the prison of the court of King's Bench, 
 and the Fleet Prison, which is the prison of the 
 court of Common Pleas. It would naturally be sup- 
 posed that the debtor is then actually consigned 
 to the confinement and misery of a prison, that he 
 may have every inducement to discharge the debt. 
 
 * Cowper's Reports, 276,
 
 CIVIL LAW OF ENGLAND, 157 
 
 in order to regain his liberty. The law intended 
 this to be the case. By the Common Law^ a pri- 
 soner in execution was to be kept in salva et arcta 
 custodia, till he satisfied the plaintiff. Now, how- 
 ever, upon the prisoner giving security to the 
 marshal, he is allowed the benefit of what are 
 called the rules of the King's Bench or Fleet pri- 
 sons, or in other words, of living within any part 
 of that circuit round the prison, and without its 
 walls, to which its rules extend.* These rules are 
 extended from time to time, as the judges of the 
 King's Bench or Common Pleas see occasion;'}" 
 and the space now comprised within the limits of 
 the rules of the King's Bench prison, would of it- 
 self form a considerable town in any other part of 
 the world, than in the neighbourhood of London. 
 Respecting the marshal and the rules, the com- 
 missioners for inquiring into the duties, salaries, 
 and emoluments, in courts of justice, in the re- 
 port made to Parliament by them in 1818, on the 
 Court of King's Bench, have thought proper to 
 express themselves to the following effect: " The 
 " marshal's chief sources of profit at the present 
 " time, arise from the sale of porter and ale, 
 " (which item, they say, amounts to 900/. a year) 
 " and from the granting of the rules. It has been 
 " represented to us, that the annual consumption 
 " of porter and ale does not exceed the propor- 
 " tion of one quart per day to each prisoner 
 
 * Tidd's Practice, 3d ed. p. 946. 
 
 t 3 Term Reports, 583. 6 Term Reports, 305 and 778.
 
 158 ON THE PRESENT STATE OP THE 
 
 " within the walls of the prison, and that the 
 " liquors are of good quality, and sold at exactly 
 " the same prices as at the public houses in the 
 " metropolis, and so we think they ought to be. 
 " The direct interest which the marshal has in the 
 " sale of porter and ale, appears to us one of the 
 " most effectual methods of enforcing the absolute 
 " prohibition of spirituous liquors, which is a 
 " standing regulation in the prison. We think 
 " that this emolument ought not to be withdrawn 
 " from the marshal, without an adequate compen- 
 " sation. It appears to us that the sale of porter 
 " and ale within the walls is upon the whole 
 " convenient and beneficial to the prisoners. As 
 ** to the emolument of the marshal arising from 
 " the granting of the rules to prisoners, it appears 
 " to us necessary that a power of granting such 
 " liberty should exist somewhere. The prison is 
 " not capable of containing within its walls the 
 " number of persons committed. The marshal, 
 " who incurs all the risk of an escape, ought, we 
 " think, in justice, to be indemnified in this re- 
 " spect ; and we do not see how he can be in- 
 " demnified, without having the power of grant- 
 " ing this indulgence upon reasonable terms, to 
 " be made with the prisoner who seeks to avail 
 " himself of it. The risk incurred must be sub- 
 " ject to variation in each particular case, so as 
 " to admit, as we think, of no general rule, which 
 " could justly be applied as the measure of in- 
 " demnity. Were the indulgence of the rules 
 " withdrawn, or materially impeded, we should
 
 CIVIL LAW OF ENGLAND. 159 
 
 " have great apprehensions that the health of the 
 " prisoners would suffer from the crowded state 
 " of the gaol. It appears to us, that attempts to 
 " alter the present practice might tend inconve- 
 " niently to restrain, if not to destroy, the exercise 
 " of the indulgence in question. Regulations have 
 " recently been made in respect to this prison by 
 " the authority of the Court itself, after a long 
 " and painful inquiry, but no alteration is thereby 
 " directed, as to the emoluments in question. It 
 " appears to us, upon the whole, better to leave 
 " this matter where the statute 32 Geo. II. c. 28. 
 " has placed it ; together with all matters condu- 
 " cive to the better government of the prison, in 
 " the hands of the court to which the prison 
 " more immediately belongs."* The commission- 
 ers have abstained from all observation relating 
 to the average number of debtors committed, or 
 the amount of their debts, the number of those 
 who take the benefit of the rules, or the sums re- 
 ceived by the marshal for granting them ; all of 
 which particulars are extremely necessary to be 
 known, either in order to ascertain the exact 
 amount of the whole emoluments of the marshal, 
 which are said to be preposterously large, or what 
 is of much more importance, of the efficiency of 
 the present mode of confinement in the King's 
 Bench prison, to enforce the payment of debts. 
 Whether it be wise policy for the law to permit 
 confinement of the person for the payment of 
 
 * p. 172.
 
 160 ON. THE PRESENT STATE OF THE 
 
 debts, is a controverted question, which it is not 
 necessary to stir in this place. Before resorting 
 to that remedy, it would always be better to as- 
 sign to the creditor the whole of the debtor's 
 estate and effects present or prospective, as far 
 as that course is practicable. Imprisonment 
 might afterwards be enforced, if it were asked or 
 permitted, but then it ought invariably to be im- 
 prisonment in the ordinary and strict acceptation 
 of the term. If the prison, however large, be not 
 large enough for its purpose, it either ought to be 
 made larger, or it ought to be closed against debt- 
 ors altogether. Imprisonment within the rules, 
 can with no propriety be called imprisonment in 
 any sense of the term. It is merely restriction to 
 an unfrequented and disagreeable quarter of the 
 town, where thousands of the most dissipated and 
 worthless characters in the kingdom are congre- 
 gated together, many of whom are known to be 
 all the while laughing at their creditors and living 
 in unrestrained debauchery and profusion. It 
 often happens that the restraint does not even 
 reach this amount, for it is notorious, that many 
 of those who have been supposed to be within the 
 rules, have been parading the. streets of London, 
 hunting in the country, or as is said to have hap- 
 pened in one or two instances, to have been actu- 
 ally travelling on the continent. The present 
 system of confinement in the King's Bench pri- 
 son labours under the further disadvantage of 
 being both unjust and unequal. It is unequal, 
 because those who are living without the walls,
 
 CIVIL LAW OF ENGLAND. 161 
 
 cannot be pretended to be suffering the same 
 restraint with those who are within, which as 
 persons subject to the same misfortune, or 
 guilty of the same offence, they are presumed 
 to be. It is unjust, because in contradiction 
 to every principle of natural equity, those per- 
 sons are made to suffer most severely who the 
 least deserve it. It is those who are too poor 
 to procure or pay for the benefit of the rules, who 
 are confined within the walls of the prison, and it 
 is to those who have credit and can procure 
 money, which had better be employed in dis- 
 charging their debts, to whom that indulgence is 
 extended. Unless stronger reasons can be urged 
 in favour of such a system, than those which have 
 been yet advanced, its continuance seems neither 
 to conduce to the benefit of creditors, nor the 
 good of the country. 
 
 SECTION V. 
 
 On the Procedure of Courts of Equity. 
 
 IT has been already intimated, that the compa- 
 ratively late period at which Courts of Equity 
 arose, appears to be one of the chief reasons why 
 the words and phrases used in equitable proceed- 
 ing are more intelligible than those employed in 
 
 M
 
 102 OX THE PRESENT STATF. OF THE 
 
 courts of Common Law. To the same circum- 
 stance it may be owing, that until a comparatively 
 recent period, there was no necessity for its writ- 
 ten pleadings being so rigidly confined to a precise 
 form as those of the Common Law were very 
 early required to be. It is true the multitude of 
 technical rules which the subtlety of practice has 
 now introduced has destroyed this simplicity, but 
 the main principles of the system of equitable 
 pleadingare still entitled to decided commendation. 
 A suit in equity is commenced by filing what is 
 termed an English Bill, which when done in the 
 name of the Attorney-General or with his sanc- 
 tion receives the name of an Information, and is 
 addressed to the Lord High Chancellor if filed in 
 the Court of Chancery, and to the Chancellor and 
 Barons of the Exchequer if filed on the equity side 
 of the Court of Exchequer ; preserving always a 
 similar form ; setting forth the complainant's cause 
 in any becoming form of words he may think 
 fit to use; and praying that the defendant may be 
 required by writ of subpoena to appear and an- 
 swer it; and that the plaintiff may either have the 
 relief he asks or such as the judge may think the 
 justice of the case requires. The subpoena issues 
 of course. The defendant is compelled by the 
 subpoena to appear. When he has appeared, if 
 he thinks he can show the Court that the bill, 
 even though admitted to be true, ought not to be 
 entertained, he demurs or pleads; but if he cannot 
 admit the facts as stated in the bill, he delivers in 
 a written answer upon oath, setting forth what
 
 CIVIL LAW OF ENGLAND. 
 
 he knows or believes them to be. He has a 
 right to a certain length of time in all cases 
 to prepare this answer, and though in most 
 instances it is believed to be at first too long, 
 it is again extended whenever good ground is 
 shown for such indulgence. Upon the alle- 
 gations and prayer of the bill, the demurrer, 
 plea, or answer of the defendant, together with 
 the oral and documentary evidence produced 
 by the parties, when such can be admitted, 
 the decree pronounced in equity is founded. 
 Though this is the form and progress of a suit in 
 Courts of Equity at present, it was somewhat 
 different when the jurisdiction of the Chancellor 
 was established. The bill which forms the com- 
 mencement of the suit, was not always in Eng- 
 lish, as has generally been supposed. The date 
 of the first bills in Chancery now remaining on 
 record, must be about 1394, in the 16th year of 
 the reign of Richard II.* The bills were then 
 uniformly in French, and the indorsement or or- 
 der made by the Court, in Latin. The first Eng- 
 lish bill now existing in the Tower was in the 
 early part of Henry V.f From that period bills 
 appear to have been framed indifferently either in 
 
 * Proceedings in Chancery, p. 1. Though these very curious 
 papers, prepared by authority of the Record Commissioners, are 
 not yet published, I have, by the kindness of Mr. Bayley, been 
 favoured with the perusal of that portion of them which is 
 printed. 
 
 t Ib. p. 13. 
 
 M 2
 
 164 ON THE PRESENT STATE OF THE 
 
 English or French ; and the last which is to be 
 found in French, was in the early part of the 
 reign of Henry VI.* As might have been ex- 
 pected at the rise of a new judicature, no nice or 
 formal plan of proceeding was either pursued or 
 required. From the cases of hardship stated 
 however, and the frequent complaints appearing 
 in the printed papers, that the parties " were 
 " poor, and unable to pursue the Common Law,"f 
 and the manner in which they frequently ad- 
 dressed the Chancellor " for the love of God and 
 " in the work of charity," it is evident that 
 they expected from his extensive power and sum- 
 mary method of administration, that redress 
 which they could not obtain by any other means. 
 While the Masters in Chancery, who are ap- 
 pointed by the chancellor, and attached to him as 
 assistants,;); appear to have been the principal 
 agents in devising new writs, which multiply the 
 forms of action and impede its progress in the 
 courts of Common Law, no permission has ever 
 been given to these officers to intermeddle with 
 any part of the procedure under the chancellor's 
 equitable jurisdiction. The Court of Chancery 
 has tenaciously adhered to that form of bill with 
 which it began, and which it applies to all sorts 
 of persons and causes of action. Indeed, it will 
 
 * Proceedings in Chancery, &c. p. 25. 
 
 t Ib. pp. 13, 14.31, 32. 
 
 } 13 Edward I. c. 24. ante, p. 77.
 
 CIVIL LAW OF ENGLAND. :165 
 
 not be easy to propose any plan of procedure 
 more natural or appropriate than that of the court 
 of Chancery, in essential points, now is. If it 
 were disencumbered of that load of abuses and 
 anomalies which time and carelessness have accu- 
 mulated, it is well fitted by means of pleadings, 
 hearings bejore a judge, references by a judge to one 
 of the Masters for his opinion on subordinate mat- 
 ters, and hearings on further directions when it 
 returns to the judge again, to settle the tedious 
 and involved legal controversies, to which a re- 
 fined state of society necessarily gives birth. Whe- 
 ther this be so or not, the records still extant prove 
 that its motions were at first exempt from the 
 charge either of dilatoriness or formality, and the 
 fact is further confirmed by the celerity with 
 which actions were terminated in the Courts of 
 England in comparison of those of France. 
 
 In the dialogue which Chancellor Fortescue 
 supposes to have passed between himself and 
 Prince Edward, son of Henry VI., the prince 
 proposes the following question : " Unum jam 
 " solum superest Cancellarie declarandum, quo 
 " parrumper adhuc fluctuat, inquietatur quoque 
 " mens mea ; in quo si earn solidaveris, non am- 
 " plius te qusestionibus faligabo. Dilationes in- 
 " gentes, ut asseritur, patiuntur leges Angliae in 
 ' processibus suis, plus quam leges aliarum na- 
 " tionum; quod petentibus, nedum juris sui pro- 
 " latio est, sed et sumptuum quandoque importa- 
 " bile onus, et maxime in actionibus illis in quibus 
 " damna petentibus non redduntur." To this
 
 16G ON THE PRESENT STATE OF THE 
 
 question the chancellor makes the following re- 
 ply : " In actionibus personalibus extra urbes et 
 " villas mercatorias, ubi proceditur secundum 
 " consuetudineset libertates earundem, processus 
 " sunt ordinarii. Et quantaslibet dilationes pa- 
 " tiuntur, non tamen excessivas. In urbibus vero 
 " et villis illis, potissimum cum urgens causa de- 
 " poscat, celeris, ut in aliis mundi partibus fit pro- 
 " cessus; nee tamen ut alibi ipsi nimium aliquan- 
 " do festinantur, quo subsequitur partis Iresio. Rur- 
 " sus in realibus actionibus. in omnibus fere mundi 
 " partibus, inorosi sunt processus, sed in Anglia 
 " quodammodo celeriores. Sunt quippe in regno 
 " Franciae, in curia ibidem summa quae Curia Par- 
 " liamenti vocitatur, processus quidam qui in ea 
 " plus quam 30 annis pependerunt. Et novi ego 
 " appellationis causam unam, quae in curia ilia 
 " agitata fuit, jam per 10 annos suspensam fuisse, 
 " et adhuc verisimile non est earn infra annos 10 
 " alios posse decidi. Ostendit et mihi dudum 
 " dum Parisiis morabar, hospes meus processum 
 " suum in scriptis, quern in Curia Parliamenti ibi- 
 " dem ipse tune 8 annos pro 4s. reditus, qui de 
 " pecunianostra 8d. non excedunt, prosecutus est, 
 " nee speravit se in 8 annis aliis judicium inde 
 " obtenturum.'* Yet so liable is every human 
 institution to degenerate, that within a hundred 
 years after this was written, the very same objec- 
 tions were made to the procedure of the Court 
 of Chancery in England, which Fortescue has 
 here made to those of the Parliament of Paris. 
 
 * Fortescue de Luudibus Leg. Anglize, cap. 52.
 
 CIVIL LAW OF ENGLAND. 167 
 
 The fall of Lord Chancellor Bacon was the first 
 occasion which brought its delay and expensive- 
 ness fully into discussion, and the following notes, 
 extracted from the Journals of the House of Com- 
 mons, incontestibly prove that they were then 
 felt to be a serious public grievance. " Mr. Alford, 
 " That the Chancery hindereth commerce at 
 " home. The Chancery to be confined to breach 
 " of trust, covin, and accident ; not to have our 
 " wills or gift of lands questioned where no fraud. 
 " Length of causes 23 his ; some 30 years. 
 " That some masters of the Chancery good, 
 " others not so good. 19th April, 19 James I. 
 " An act for review and reversal of decrees in 
 " courts of equity. An act for avoiding of vexa- 
 " tion by process in courts of equity. An act for 
 " prohibition for tithes. An act for process of 
 " outlawry to be awarded after judgment in the 
 " King's Bench. An act for the avoiding of the 
 " exaction of undue fees in courts of justice. An 
 " act for moderating of fees for orders in courts 
 " of equity." In a subsequent debate Sir E. Coke 
 declared, " that the chancellor can make no de- 
 *' puty for the merits of the cause, but accounts 
 " or matters of form. That the Chancery em- 
 " braceth so many causes as the chancellor and 
 " master of the Rolls cannot possibly determine 
 " them. We now about to restrain them/'* 
 This parliament of James was dissolved before 
 any of the regulations then in contemplation 
 
 * Journals of the House of Commons, v. 1. pp. 373. 582. 5<H.
 
 T68 ON THE PRESENT STATE OF THE 
 
 were completed; and to judge of the practice of 
 the court of Chancery by the language held re- 
 specting it, when the administration of justice 
 came to be discussed during Cromwell's usurpa- 
 tion, it could not have improved in the course of 
 the intervening period. An anonymous member 
 of parliament, who published an account of the 
 proceedings of the House of Commons, informs 
 us that when the business of the high court of 
 Chancery was taken into consideration in 1653, 
 " in the course of the debate, the court of Chan- 
 " eery was called by some members the greatest 
 " grievance in the nation ; others -said, that for 
 " dilatoriness, chargeableness, and a faculty of 
 " bleeding the people in the purse-vein, even to 
 " their utter perishing and undoing, that court 
 " might compare with, if not surpass, any court 
 "in the world: that no ship almost that sailed 
 " in the sea of the law, but first or last put into 
 " that port ; and if they made any considerable 
 " stay there, they suffered so much loss, that the 
 " remedy was as bad as the disease ; that when 
 " the purses of the clients began to be empty, 
 " and their spirits a little cooled, then, by a refe^ 
 " rence to some gentleman in the country, the 
 " case so long depending at so great a charge 
 " came to be ended ; so that some members did 
 ".not stick to term the Chancery a mystery of 
 " wickedness and a standing cheat, so at the end 
 " of next day's debate it was voted down."* 
 
 * Hansard's Parliamentary History, Y. 3. p. 1412.
 
 CIVIL LAW OF ENGLAND. 
 
 In this state of the public mind, the ordinance 
 of 1654 very naturally followed. The orders " for 
 " the government of the court of Chancery" were 
 printed in 1656. The subsequent ordinance of 
 1664 was revoked in the same year, but by 
 an order of the commissioners of the Great 
 Seal, in 1657,* it appears that in practice 
 every thing remained during the usurpation on 
 the footing on which it had stood previous to 
 the rebellion. Whitelocke has detailed the suc- 
 cessive steps which were pursued on the occa- 
 sion. In 1649, he reports that the commissioners 
 met, and conferred together about making new 
 rules for the reformation of Chancery. In 1653, 
 he notices the vote of the House for taking away 
 the Chancery, and that the committee of the law 
 should bring in one act for that purpose, and ano- 
 ther for the causes now depending and for future 
 relief in equity. In 1654, a report was called for 
 from the committee for regulating the Chancery; 
 and in 1655, he states the objections made to the 
 several parts of it, which, " though they could not 
 " prevail," he says, " to stay the execution of it, 
 "as to us who seemed to doubt the power that 
 *' made it, (which the makers would not endure,) 
 " yet we were the means that it was not exacted 
 " from our successors, but they were connived at 
 " in the execution of it, wherein they could not have 
 " satisfied themselves, having taken an oath which 
 " they scrupled would be broken, either in the ad- 
 
 * Beamcs's Orders, p. 129.
 
 170 ON THE PRESENT STATE OF THE 
 
 " mittance of this ordinance for a bar, or if admitted, 
 " in neglecting any part of the performance there- 
 " of."* Soon after the restoration Lord Claren- 
 don republished the orders of 1656: Lord Bacon 
 issued an useful set of orders during the short 
 time he held the Seals, and his successors have 
 done little more than add to and amend them. 
 It is said that Lord Keeper North intended " to 
 " retrench motions for speeding and delaying 
 " causes ; stopped the course of injunctions upon 
 " exceptions to an answer filed ; retrenched the 
 " superfetation of interlocutory orders ; very dif- 
 " ficult about rehearings ; quickened dispatch in 
 " the register's office, and designed a book of 
 " rules and orders :"t yet this, like many other 
 excellent undertakings, rested only in intention. 
 It also appears that "The Lord Somers (in 1706, 
 " just after he had quitted the seals) made a mo- 
 " tion in the House of Lords to correct some of 
 " the proceedings in the Common Law and in 
 " Chancery, that were both dilatory and very 
 " chargeable. He began the motion with some 
 " instances that were more conspicuous and gross, 
 " and he managed the matter so that both the 
 " Lord Keeper and judges concurred with him. 
 " A bill passed the House that began a reforma- 
 " tion of proceedings at law, which as things now 
 " stand, are among the greatest grievances of the 
 " nation. When this went through the House of 
 
 * Whitelocke's Memorials, pp. 421. 56'2. 6'08. 6'21. 
 
 t North's Lite of Lord Keeper North, '3d cd. v. ii. pp. 72. 88.
 
 CIVIL LAW OF ENGLAND. 171 
 
 " Commons, it was visible that the interest of 
 " under officers, clerks, and attornies, whose pro- 
 " fits were to be lessened by this bill, was more 
 " considered than that of the nation itself. Seve- 
 " ral clauses, however beneficial to the subject, 
 *' which touched their profit, were even left out 
 " by the Commons. But what fault soever the 
 " Lords might have found with these alterations, 
 " yet to avoid all disputes with the Commons, 
 " they agreed to their amendments."* 
 
 A variety of subordinate and sometimes contra- 
 dictory orders have been made from that time to 
 this, yet from the institution of the court of Chan- 
 cery to the present day, no part of the procedure 
 of courts of equity has ever undergone serious 
 or effectual revision. The consequence is, that 
 the delay which takes place in the court of Chan- 
 cery is proverbial, and the arrears of business 
 have generally been enormous. To this there have 
 been several rare exceptions. Lord Hardwicke is 
 said generally to have discharged the whole equi- 
 table business which came before him ; and once 
 during the chancellorship of Lord Thurlow, he is 
 said to have left town for the long vacation with- 
 out leaving a single cause, motion, or petition, 
 undisposed of. These exceptions appear rather 
 to be honourable to the judges in whose time they 
 occurred than as affording any proof of the gene- 
 ral sufficiency of the present courts of equity to 
 discharge the press of business which has for 
 
 * Burnct's History of Jlis Own Times, v. iv. p. 140.
 
 172 ON THE PRESENT STATE OF THE 
 
 many years flowed in upon them. Their utter in- 
 ability to accomplish this end, has on the con- 
 trary been a subject of private lamentation with 
 almost every judge, who has for the last hundred 
 and fifty years sat in Equity, and some of them 
 have not scrupled to make a public avowal of 
 their sentiments. Lord Kenyon declared about 
 thirty years ago : " I admit the cause is unfi- 
 " nished. Is it therefore to be considered con- 
 '" tinually alive ? I do not admit that : I fear 
 " many causes are in that situation, much to the 
 " reproach of the court and those concerned."* 
 And not many months ago, Lord Chancellor El- 
 don is reported to have expressed himself in the 
 following words ; " The Lord Chancellor took 
 " this opportunity of observing upon the intricacy 
 " of legal pleadings. He recollected in former 
 " times these pleadings were extremely simple, 
 " but by modern practice they had been rendered 
 " most complicated. It had been thought advis- 
 " able to assimilate the pleadings of Scotland, the 
 " length and intricacy of which had been much 
 " complained of, to those of England ; but it ap- 
 " peared to him that the pleadings of this country 
 " were nearly as intricate as those of Scotland, 
 " and therefore little would be gained by their 
 " assimilation."! If the report now quoted be 
 correct, this explicit though tardy acknowledg- 
 ment of the deplorable state of the procedure of 
 
 * 2 Vesey, jun. Rep. p. 91. 
 
 t New Times, March 7th, and Morning Chronicle, March 
 8th, 1824.
 
 CIVIL LAW OF ENGLAND. ] 73 
 
 that Court over which the judge who made it 
 has now presided upwards of two and twenty 
 years, and of which during the whole of that long 
 period he has remained a constant and passive 
 spectator, affords the strongest possible encourage- 
 ment for persevering exertion on the part of those 
 who think that the character of the law in this 
 country and the interest of the suitors urgently 
 require its amendment. 
 
 Tu ne cede malis, sed contra audentior ito, 
 Qua tua te Fortuna sinet. Via prima salutis, 
 Quod minime reris, Graja pandetur ab urbe. 
 
 To attempt an enumeration of the various pro- 
 ceedings which may take place in suits in Equity, 
 according to the nature of the case and number 
 of the parties, by means of amendment to original 
 bills, bills of revivor, supplemental bills, bills of revivor 
 and supplement, cross bills, bills of review, supple- 
 mental answers, and exceptions to answers, together 
 with the interlocutory motions, and petitions, which 
 in the progress of a suit may become necessary 
 for preserving and managing property, preventing 
 irreparable waste, stopping actions at Common 
 Law, bringing fresh evidence before the Court, or 
 other applications which the interest of individual 
 parties or exigency of the case requires, would of 
 itself form a task of no small difficulty. It may 
 be sufficient to observe, that the operation of all 
 this machinery, clogged and retarded as it is, 
 produces a degree of delay and expense, which 
 has rendered courts of equity an object of terror
 
 174 ON THE PRESENT STATE OF THE 
 
 to the suitors and of ridicule to the public. It is 
 difficult to say whether dilatoriness or expense be 
 productive of the most oppression. One great 
 cause of expense has lately been removed by the 
 partial reduction or total removal of the stamps 
 on law proceedings. For this concession it is im- 
 possible to speak of the conduct of the govern- 
 ment in terms of sufficiently warm approbation. 
 The measure was not only a sensible relief in it- 
 self, but became doubly valuable on account of 
 the feelings manifested on its enactment. It is 
 to be hoped that the few law taxes which still re- 
 main will speedily be repealed also, and that 
 none of those which have been abolished, will 
 be under any circumstances re-established. A 
 tax upon justice, next to the sale of indul- 
 gences, is the most odious and impolitic me- 
 thod ever devised to raise money on the people. 
 With all the alleviations which are practicable, 
 suits in equity can never fail to be costly. They 
 must continue costly as long as they are dilatory, 
 and they must of necessity be to a certain degree 
 dilatory as long as they embrace a multitude of 
 parties and varieties of interest. A suit in which 
 there are five, ten or twenty parties, cannot pos- 
 sibly be terminated so quickly as an action at 
 Common Law where the parties are few, nor 
 does it seem practicable to introduce into it the 
 same strictness of pleading without creating an 
 expense which would become intolerable. To 
 this circumstance those gentlemen in Scotland 
 who have delivered their opinions on the improve-
 
 CIVIL LAW OF ENGLAND. 175 
 
 ment of the procedure in that country, seem not 
 to have sufficiently attended. Common Law and 
 Equity is there administered in the same forum, 
 and they appear to think that all law proceedings, 
 equitable as well as legal, may be subjected to the 
 same unbending technical rules which prevail in 
 Courts of Common Law in England. An experi- 
 ment of this kind seems scarcely fit to be at- 
 tempted. Many of the suits which take place in 
 equity are rather for the purpose of having the 
 doubtful or complicated rights of several parties 
 determined, than one specific equitable claim ad- 
 vanced on one side and denied on the other; and 
 to nullify every step taken in such a process, when 
 it has continued for years, and been with great 
 trouble and expense brought nearly to a termina- 
 tion, merely because it suited one out of many 
 parties to take a technical objection, would entail 
 extreme oppression upon the great body both of 
 plaintiffs and defendants. Should there be any 
 justice in the observations now offered, pleadings 
 in equity must always remain less technical than 
 pleadings at Common Law between two parties 
 only. I conceive this distinction between the two 
 systems to subsist to a certain degree at present 
 in England, and it does not seem practicable al- 
 together to remove it. But while it is unadvisable 
 to expect or attempt too much, there can be no 
 doubt that in almost every stage of equitable pro- 
 cess great improvements may be with certainty 
 effected ; and as after all insurmountable causes 
 of delay will still remain, that very circumstance
 
 17G ON THE PRESENT STATE OF THE 
 
 furnishes the strongest possible argument why ; 
 none which can be surmounted should continue. 
 
 Delays in Courts of Equity, as well as in Courts 
 of any other description, may arise from four diffe- 
 rent and unconnected causes, from the judge, from 
 counsel, from solicitors, or from that body of regu- 
 lations of which what is called the practice of the 
 court consists. It falls to the lot of few judges to 
 hit the exact medium between slowness and preci- 
 pitation. Great allowances ought to be made for 
 the differences which must exist in their powers 
 and dispositions. There are however certain limits 
 which a judge cannot transgress without degene- 
 rating into extremes which the general sense of 
 mankind will pronounce to be reprehensible. In 
 the course of a debate on Unitarian marriages 
 which took place in the House of Lords in 1824, 
 Lord Eldon is reported to have expressed himself 
 thus : " But what it was that made these mar- 
 " riages valid before the passing of the act, al- 
 " though he had been occupied eighteen days in 
 " hearing arguments and authorities on both sides 
 " in a case involving a question of legitimacy, 
 " arising out of the effect of a marriage of that 
 " description of law, he did not know how to 
 " decide; and he believed their lordships would 
 " rather endure the tortures of the inquisition 
 " than be condemned to hear the arguments 
 " which he had been obliged to listen to on the 
 " subject."* Unless the words or sentiments of 
 
 * New Times of May 5th, 1824.
 
 CIVIL LAW OF ENGLAND. 177 
 
 Lord Eldon have been misreported, the speech 
 here ascribed to him is one of the severest cen- 
 sures ever pronounced upon his own judicial ad- 
 ministration. Taking for granted the reality of 
 the torture which the judge here assumes himself 
 to have suffered, it is impossible that he should 
 not in part have become his own tormentor. Al- 
 lowing the utmost latitude for patience and 
 attention, eighteen days is surely an extrava- 
 gant space of time for a single cause to oc- 
 cupy ; and I do not see how it is possible 
 to deny that before this could happen, a judge 
 must be in some way or other deficient in the 
 decision and energy which belongs to his station, 
 and answerable for a considerable share of the 
 delay which he affects to deplore. North said of 
 Lord Nottingham, that he came into the Court of 
 Chancery " and sat there a great many years. 
 " During his time the business, I cannot say the 
 "justice, of the Court flourished exceedingly. 
 " For he was a formalist, and took great pleasure 
 " in hearing and deciding, and gave way to all 
 " kinds of motions the counsel would offer : sup- 
 " posing that if he split a hair, and with his gold 
 " scales determined reasonably on one side, jus- 
 " tice was nicely done. Not imagining what 
 " torment the people endured who were drawn 
 " from the law, and there tossed in a blanket."* 
 An appetite for arguments of counsel, which it is 
 not uncommon for judges to acquire, is a source 
 
 * North's Life of Lord Keeper North, v. ii. p. 74, 2d cd. 
 
 N
 
 178 ON THE PRESENT STATE OF THE 
 
 of severe oppression to litigants, and is not unfre- 
 quently pushed to such an extent, that justice ex- 
 pires under the precautions which are taken to pre- 
 serve it. Whether counsel ought in certain cases to 
 be interrupted by the bench, or whether the most 
 effectual sort of interruption does not consist in 
 the distress which an attentive judge will gene- 
 rally be seen to suffer from wandering and repeti- 
 tion, are points which it is not very easy to deter- 
 mine. Lord Hale, whose judicial qualifications 
 none will be found to question, appears to have 
 regarded seasonable interruption as a part of his 
 duty; " And when he was a judge he held those 
 " that pleaded before him to be the main hinge 
 " of the business, and cut them short when they 
 " made excursions about circumstances of no 
 " moment, by which he saved much time, and 
 " made the chief difficulties be well stated and 
 " clearly."* Even without attempting interrup- 
 tion at all, a temperate and firm judge must from 
 his manner of conducting business alone, check 
 the length and diffuseness of the arguments of 
 counsel in a way which they will find it difficult 
 to resist. Irregularity, or bad arrangement in 
 his mode of proceeding, is also an error into 
 which a judge may fall, and one of the most 
 fruitful sources of delay existing. It may exist 
 in all degrees, and be pushed so far that a con- 
 siderable portion of each day may be exhausted 
 in talking over what was done on some day pre- 
 
 * Burnet's Life of Sir Matthew Hale, p. 125.
 
 CIVIL LAW OF ENGLAND. 179 
 
 ceding, or is to be done on some day following. 
 Few restraints upon unnecessary delay in the de- 
 spatch of business would be more effectual than to 
 limit the number of counsel who are permitted to 
 address the Court. Instead of hearing three or four 
 on one side, as often happens now in Courts of 
 Equity, much time would be gained by restricting 
 them to two, which is the number allowed to be 
 heard in the House of Lords, and ought to be suffi- 
 cient to explain the merits of any question. There 
 would thus be a considerable saving of time in 
 the number of speeches, and as those who spoke 
 would come better prepared, there would proba- 
 bly be a saving of time in the length of each 
 speech also. The courtesy which solicitors show 
 to each other, or the remissness with which they 
 act themselves, is a considerable cause of pro- 
 crastination also. Part of it is said to be attributa- 
 ble to the clerks in court a class of officers who 
 still exist in the courts of Chancery and Exchequer, 
 and are formerly said to have existed in the King's 
 Bench also, though they have in that court been long 
 ago abolished. They are the only attornies recog- 
 nised in courts of Equity, and are in theory sup- 
 posed to have the management of all the suits there 
 depending. " The first step in a suit," Mr. Vizard 
 has said, "compels the solicitor to go to a clerk in 
 " court; nor can he make a single move afterwards, 
 " without this, as it appears to me, most useless 
 officer."* To this one of the clerks in court has 
 
 * Vizard's Letter to Master Courtenay, p. 4, 11, and 34. 
 N 2
 
 J80 ON THE PRESENT STATE OF THE 
 
 made the following reply : " Mr. Vizard states that 
 " he cannot discern that the clerks in court are useful 
 " in assisting or controuling the solicitors, or in pro- 
 " tecting the Court ; now I can with safety say, 
 " that almost every minute of my time and that of 
 " my brother clerks in Court, who from their long 
 " standing in the office have any considerable 
 " portion of business, that is to say, the time that 
 " can be spared from our attendance to the duties 
 " of our office, is taken up in answering the 
 " various questions of practice put to us by our 
 " clients and their clerks ; and I assert that the 
 " expence and delay saved to the suitors by the 
 " timely application of the solicitors to their 
 
 " clerks in court is incalculable. On the charge 
 
 " of delay, I at once deny that any is imputable 
 " to our office. The present constitution of that 
 " Court admits of great delay in the practice, 
 " and the negligence of the suitors tends to in- 
 " crease it. On this subject I will say no more. 
 " The commissioners in the discharge of their 
 " duties cannot fail of being convinced, that whe- 
 " ther the proceedings pass through the six clerks' 
 " office, or through the offices of individuals, al- 
 " terations in the practice, and the honest atten- 
 " tion of the solicitors to the interest of their 
 " clients, can alone obviate the evils that are now 
 " complained of.''* The only conclusion which can 
 with certainty be drawn from these conflicting 
 statements is, that every suitor in the Court of 
 
 * Milk's Letter to Master Courtcnay, p. 6 and 10.
 
 CIVIL LAW OF ENGLAND. 181 
 
 Chancery is obliged to have two solicitors in the 
 same cause, the first of whom charges the second 
 with delay and expence, and the second charges 
 the first with inattention neither of the charges 
 being perhaps altogether without foundation. 
 But what possible reason can be given why two 
 agents in this case should be better than one? 
 First of all the cost is greater, and that is an ob- 
 vious disadvantage. In the next place, it must 
 naturally take more time to communicate through 
 two than through one, which is another disadvan- 
 tage of no small moment. Last of all, if blame is 
 imputable, it is much more difficult to fix it upon 
 two than one, and that is also disadvantageous. 
 Upon every ground, therefore, one agent appears 
 to be preferable to two ; and if so, there can be 
 no doubt that the client's own solicitor ought to 
 be preferred, and the clerks in court superseded. 
 Whatever duties it is desirable that the sixty clerks, 
 or the clerks in court in Exchequer, should still 
 continue to perform in preserving and arranging 
 records, reading proceedings in Court, taking 
 charge of the written pleadings during the pro- 
 gress of a suit, or making copies of them for the 
 benefit of the suitors, should be remunerated as 
 liberally as the nature of their occupation war- 
 rants. But there is no reason why an attempt 
 should be made to elevate their station into one 
 of dignity or large emolument, or that they them- 
 selves should be recognised as the official attornies 
 of the Court. The client's solicitor would then
 
 182 ON THE PRESENT STATE OF THE 
 
 be exclusively responsible for the management of 
 the suit. If it were conducted well, he would 
 receive the credit, and if not, he would be obliged 
 to bear the blame. It also happens that the re- 
 missness of the plaintiff's solicitor is often heavily 
 complained of by the solicitors for the different 
 defendants, and it is one of those causes of delay 
 which should most anxiously be guarded against. 
 There are two courses, which courts of Equity 
 in these circumstances may adopt, according to 
 the nature of the case. It may either give the 
 conduct of the suit to the solicitor for one of the 
 defendants, or to a solicitor of its own nomination. 
 If it can be given with propriety to the solicitor 
 of one of the defendants, that course as the mild- 
 est usually receives the preference. When this 
 cannot be done, the Court then exercises its un- 
 questionable privilege of taking the management 
 of the suit entirely out of the hands of the party's 
 own solicitor, and commits it to one of its own 
 appointment. This part of its jurisdiction is so 
 peculiarly delicate, that it is not desirable it 
 should be often exerted, although if it were ex- 
 erted somewhat more frequently than it has been, 
 it would be one of the most efficient of all means 
 by which the speed of suits in Equity would be 
 accelerated. 
 
 The three grounds of delay which have now 
 been specified, are neither caused nor cured by 
 rules or resolutions, and have no necessary con- 
 nection with the badness or excellence of the
 
 CIVIL LAW OF ENGLAND. ' 183 
 
 system of procedure itself. The, system of pro- 
 cedure may on the one hand be excellent, while 
 the prevalence of one or more of these causes of 
 delay may render the wisdom of its provisions 
 almost totally useless ; and, on the other, the ca- 
 pacity and activity of judges, counsel, and solici- 
 tors, may carry on business well, while the sys- 
 tem of procedure itself is obviously faulty. In 
 general, however, the one has ari effect upon the 
 other, and the zeal of both judges and practition- 
 ers is apt to be slackened, when they find that 
 the system of procedure affords opportunities for 
 delay or chicanery, which, with all their efforts, 
 they are unable to counteract. The great length 
 of time which is allowed to every step in the 
 cause, is the chief defect of the system of proce- 
 dure in Equity. Though the communication be- 
 tween different parts of the country is twice as 
 quick as it was fifty or a hundred years ago, that 
 circumstance has not in the least accelerated the 
 movements of courts of Equity, and the space that 
 elapses between term and term, is regarded as time 
 during which the Court and its practitioners do 
 nothing. Every thing bears marks of the formality 
 and inactivity which characterise the legal institu- 
 tions of an antecedent age, and powerfully mili- 
 tates against those who are anxious to get a 
 speedy decision on the real merits of the questions 
 at issue between them and their opponents. Be- 
 sides this general imperfection which pervades 
 the whole system, there are a variety of objec- 
 tions which may be made to its particular parts,
 
 184 ON THE PRESENT STATE OF THE 
 
 a few of which by way of illustration shall be now 
 specified. 
 
 1 . The first of these is the form of the bill and 
 answer. A bill consists of nine parts ; 1, the title 
 of the judge or judges of the Court to whom it is 
 addressed ; 2, the names of the plaintiffs and de- 
 fendants; 3, the statement of the complaint itself; 
 4, the charge of confederacy ; 5, that part of the 
 bill called the charging part, in which the presumed 
 justification of the defendants is set forth and re- 
 pelled; 6, the interrogating part; 7, the averment, 
 which is intended to give the Court jurisdiction; 
 8, the prayer for that discovery or relief which the 
 plaintiff thinks fit to ask ; and 9, the prayer for a 
 subpoena. 
 
 Inconvenient as the form of a bill in Equity is, 
 the introduction of any material amendment will 
 by no means be found so easy an undertaking as 
 might at first sight be imagined. The charge of 
 confederacy, and the averment which is intended 
 to give the Court jurisdiction, ought both of them 
 to be omitted. The first was introduced by the 
 plaintiff in order to ascertain whether the defend- 
 ant was in league with any other persons, and 
 particularly with great men, who in former times 
 frequently maintained quarrels for the purpose of 
 oppressing their inferiors; and the second was in- 
 tended at the commencement of equitable juris- 
 diction, as an appeal to the Chancellor's compas- 
 sion, upon any ground which the plaintiff might 
 think fit to mention.* This change, however, 
 
 * On these points see Proceedings in Chancery, printed by the 
 commissioners of records, p. 1 56 passim.
 
 CIVIL LAW OF ENGLAND. 
 
 even if effected, would be very unimportant. 
 Another alteration might be suggested, which, if 
 practicable, might perhaps be of more utility. 
 If the names of plaintiffs and defendants were 
 prefixed to a bill in the same way that they are 
 to an answer, and if the statement of the plain- 
 tiff's case were put into the shape in which the 
 substance of it is afterwards embodied by soli- 
 citors in the briefs which are delivered to counsel 
 when the cause comes into Court, or thrown into 
 a form still more abstract, the allegations which 
 appear in the charging part of the bill might per- 
 haps be introduced into the stating part, by which 
 means that which is now technically termed the 
 charging part might be superseded altogether. As 
 the bill is now framed this could not be done. The 
 running form of the statement now in use, incum- 
 bered as it is by " Your orators and oratrixes, fur- 
 " ther showing unto your Lordship," does not easily 
 allow allegations to be made and rebutted at the 
 same moment ; and however awkward the charg- 
 ing part may at first be thought, those who draw 
 bills in Equity usually have recourse to it on ac- 
 count of the facility it affords of setting forth such 
 facts as could not conveniently be introduced else- 
 where. It is extremely awkward however, to be 
 obliged to search for the statement of facts in dif- 
 ferent and distinct parts of the bill, and if the 
 stating and charging parts of a bill could be united, 
 by altering the stating part either as here proposed 
 or in any other manner, it would at once simplify 
 the form of the bill, and prevent a great deal of tau-
 
 186 ON THE PRESENT STATE OF THE 
 
 tology, which the repetition of the same matter in 
 the stating and charging parts of the bill occasions, 
 and is one of the main causes of the excessive 
 length of Equity pleading, for which practitioners 
 were at one time severely punished. " By a late 
 " order taken in Easter term, 38 Elizabeth, no bills 
 " ought to be of needless length on pain to have 
 " a fine set upon the counsel, with some penalty 
 " also to the plaintiff, and the like order standeth 
 '* also for answers, replications, and rejoinders."* 
 This order was very reasonable if it could have 
 been carried into execution. But it could not. 
 The ways in which different counsel view the same 
 case are as various as the modes they will adopt 
 to put that view into words, and unless the need- 
 less length has been excessive there seems no way 
 of relieving the party who has been unjustly 
 vexed by long-winded pleading, than by taking it 
 into considertion in the taxation of costs. In the 
 interrogating part of the bill those facts which 
 have been already set forth in the stating, and 
 perhaps repeated in the charging part of the 
 bill, are again detailed in the shape of questions 
 to which the defendant is required to answer. 
 This part of the bill has also frequently been 
 supposed to be superfluous. Tiresome as it is, 
 it is difficult to see how it could be spared. If 
 there were only one way of interrogating to ques- 
 tions, and those questions were broken down into 
 distinct divisions, the defendant could answer 
 
 * MS. in the possession of Henry Maddock. Esq. p. 85.
 
 CIVIL LAW OF ENGLAND. 187 
 
 them as easily without the interrogating part of 
 the bill as with it. But the interrogating part of a 
 bill is, or ought to be, as various as the questions 
 which are put upon a viva voce examination of the 
 witness. In many instances a bill may be suffi- 
 cient without an interrogating part at all, and in 
 others, upon the minute accuracy with which the 
 interrogating part is framed, the whole benefit 
 which is expected from it necessarily depends. 
 If the interrogating part were omitted, one of two 
 consequences would necessarily follow. Either 
 half the defendants in Equity would be compelled 
 to answer too much, or the other half would answer 
 too little, and both of these inconveniences would 
 be more generally prejudicial to suitors in Equity, 
 than by continuing the interrogating part of the 
 bill on the footing on which it at present stands. 
 The last part of the bill is the prayer either for dis- 
 covery or relief, or for both; arid perhaps too much 
 nicety is now required in its preparation. The 
 leaning at present is towards the side of liberality, 
 but there would be no harm if a little more lati- 
 tude were permitted.* It is a well known obser- 
 vation that the prayer " for general relief" is the 
 next best prayer to the Lord's prayer, and in 
 the case of a charity no other is requisite. It 
 will not be easy to give a sound reason why a 
 charity should not be put on the same level with 
 other parties. How that would best be done may 
 
 * One of the last discussions on the subject occurs 12 Vese/s 
 Rep. p. 62.
 
 188 ON THE PRESENT STATE OF THE 
 
 be questioned, and perhaps it would be more de- 
 sirably effected by putting all suitors upon the 
 same footing with charities, than by depriving 
 charities of any privileges which they now enjoy. 
 The only protection to which a defendant is en- 
 titled is, that the plaintiff should be allowed to ask 
 no relief or discovery at the bar, which is essen- 
 tially different in kind from that which is prayed 
 in the bill. This is necessary in order that the 
 defendant may not be taken by surprise ; but with 
 this reservation there seems no reason why the 
 judge should not give whatever relief or discovery 
 the justice of the case as proved at the hearing 
 seems to him to warrant. 
 
 Whatever difficulty may be experienced in pro- 
 posing any thing advisable in the form of the bill 
 now used in Equity, that of the answer seems sus- 
 ceptible of decided amelioration. Various altera- 
 tions might be pointed out, by which it might be 
 diminished in length and increased in clearness. 
 If the interrogating part of a bill were divided into 
 separate portions and a number affixed to each, as 
 is often done by the defendant's solicitor for the 
 convenience of preparing instructions for the an- 
 swer which is to be drawn by the barrister, the 
 instructions for the answer might with very little 
 trouble be converted into the answer itself. The 
 whole questions contained under those numbers 
 which the defendants did not deny, might then be 
 at once admitted, either absolutely, or with such 
 limitations and explanations as the facts rendered 
 necessary. Each of the remaining interrogatories
 
 CIVIL LAW OF EXGLAXD. 189 
 
 might then be answered directly and succinctly, 
 and the monosyllables 3^$ and no would be a more 
 distinct mode of expressing the assent or denial 
 of a defendant, than all the circumlocution which 
 is now employed. If questions be repeatedly 
 asked, the same in substance, but with some un- 
 important alterations in form, the defendant would 
 have nothing to do but to refer to the number of 
 his first answer, which might easily be prepared 
 so as to satisfy all the interrogator's variations. 
 The answer of defendants would then be pre- 
 pared with greater facility either by counsel or 
 solicitors, the defendant would himself understand 
 more distinctly that to which he was about to 
 swear, and his answer when sworn would be more 
 intelligible to the judge, counsel,, and parties, and 
 also less costly by being reduced to a third or fourth 
 of its present magnitude. I perceive no solid objec- 
 tion to this or some equivalent alteration, The 
 answer of a defendant is as truly an answer to a 
 series of interrogatories, as the answer of a witness 
 is to the list of interrogatories which is put to him ; 
 and there is no reason why the interrogatories of 
 a plaintiff and answers of a defendant should not 
 assume the same form with interrogatories and 
 answers of any other description. The form here 
 proposed to be given to answers, would at the 
 same time more nearly approach to the form in 
 which the defendant's answers were originally 
 given. When Courts of Equity first assumed ju- 
 risdiction, a defendant did not put in a cunningly 
 prepare'd answer in writing as he does now. The
 
 190 ON THE PRESENT STATE OF THE 
 
 personal attendance of defendants in Court, which 
 is still required, though it serves no other purpose 
 than to mislead a few ignorant parties, was at 
 first regularly exacted, and they were orally ex- 
 amined by the chancellor, on the subject of the 
 bill filed against them. Written answers did not 
 come into use till the 20th of Henry VI., in the 
 first of which remaining on record the defendant 
 concludes, " Thees be the answers of Edmond 
 " Sterky to the bill suyde ageyne hym in the 
 " Chancery be Thomas Arkeden, vicary of the 
 " chirche of Wolferchiston,"* and even then viva 
 voce examination was by no means discontinued.^ 
 To how late a date oral answers can be traced I 
 have not been able to ascertain ; but down to the 
 end of the reign of Henry VI. which is the latest 
 period to which the printed proceedings in Chan- 
 cery reach, it appears that answers were taken 
 much more frequently in that manner than pre- 
 pared in writing. The form of the answer which 
 has here been suggested, would therefore only be 
 an approximation to that oral examination to 
 which in former times the courts of Chancery 
 always had recourse, and which it is surprising 
 that it ever should have totally abandoned. 
 
 2. When a bill has been filed, the next material 
 stage of the suit consists in the appearance of the 
 defendant. A defendant is required to appear 
 
 * Proceedings in Chancery, printed by authority of the record 
 commissioners, p. 1, 17,31,41. 
 t Ib. p. 30, 31.
 
 CIVIL LAW OF ENGLAND. 191 
 
 by delivering or showing to him the following 
 writ of subpoena ; " George the Fourth, by the 
 " Grace of God, of the United Kingdon of Great 
 "Britain and Ireland, King, defender of the faith, 
 '&c. To A. B., C. D., and E. F., greeting. 
 " For certain cases offered before us in Chancery, 
 " we command and strictly injoin you, that lay- 
 " ing all other matter aside, and notwithstanding 
 " any other excuse, you personally appear before 
 
 " us in our said Chancery, the day of 
 
 " wheresoever it shall then be, to answer con- 
 " cerning those things which shall be then and 
 " there objected to you, and to do farther and re- 
 " ceive what our said Court shall have considered 
 " in this behalf; and this you may in nowise omit 
 " under the penalty of one hundred pounds ; and 
 " have there this writ. Witness ourself at West- 
 
 " minster, the day of- in the year 
 
 " of our reign."* This is the whole of the sub- 
 poena. On the back is indorsed " At the suit 
 " of A. B.," and the body and indorsement taken 
 together, afford all the information which the 
 Court is pleased to give to a defendant of what 
 he is bound to do when a suit is commenced 
 against him. It is at once redundant, deceptive, 
 and insufficient. It is redundant because the 
 words " wheresoever it shall then be" if they do not 
 lead to ambiguity, are at least superfluous. If the 
 Court of Chancery ever exercised its ordinary 
 jurisdiction any where else than in London, such 
 
 ' Harrison's Practice by Newland, p. 97.
 
 ON THE PRESENT STATE OF THE 
 
 a circumstance has not for centuries occurred, 
 and London therefore ought to be the place to 
 which the defendant should be required to resort. 
 The penalty of one hundred pounds had better be 
 omitted also* and some more suitable compulsitor 
 substituted in its room. Considered as an alter- 
 native, it is as much too high in some instances, 
 as it is too low in others. But it never is in 
 fact levied, and it answers no good purpose to 
 hold out a threat which it is never meant to en- 
 force. It is deceptive, because it asks him " per- 
 " sonally to appear before us in our Chancery," 
 when such appearance is in reality neither ex- 
 pected nor permitted. It is also insufficient at 
 the same time, because while it requires that 
 which has not for centuries been done except no- 
 minally, it omits to tell him plainly and distinctly 
 what he ought to do. Even by the help of the 
 indorsement, it is only by indirect inference the 
 person upon whom it is served can discover that 
 he is made a defendant in a suit in Equity at all, 
 and it does not tell him one word about preparing 
 that written defence or answer which he is really 
 obliged to make to the bill filed against him. 
 
 It may be alleged that the objections which have 
 now been urged, are founded upon mere specula- 
 tive refinement; that the present form of subpoena 
 has been in use for centuries, and that though its 
 form may not be absolutely unexceptionable, yet 
 that it sufficiently fulfils its purpose, without any 
 practical inconvenience being felt from it, or seri- 
 ous complaint having everbeen preferred againstit.
 
 CIVIL LAW OF ENGLAND. 193 
 
 It is not quite true that the present form of the sub- 
 poena has been productive of no practical incon- 
 venience. It has repeatedly happened that poor 
 persons, in distant parts of the country, have with 
 much loss and trouble hurried up to London on 
 the receipt of a subpoena, or been imprisoned for 
 neglecting it; and as it is a doctrine of the Court 
 " that it is a sufficient ground for protecting a de- 
 " fendant from a suit, that he may be vexed by it, 
 " independent of any pecuniary consideration ;"* a 
 suitor has as just a claim to be protected against 
 vexation in this instance as in any other. But 
 even if no inconvenience had been sustained, the 
 present form of the subpoena ought not to be con- 
 tinued. All the change that is requisite might be 
 effected with the utmost ease, and without ha- 
 zard, and if it should be contended that forms 
 which were made to suit the law as it existed 
 three or four centuries ago do not require to be 
 accommodated to the present times, and that it is 
 just to employ legal instruments which say one 
 thing and mean another, then there is no species 
 of absurdity and deceit which may not be justi- 
 fied, and Courts of Equity will themselves be- 
 come the promoters of fraud and misrepresenta- 
 tion, which" it constitutes the most legitimate 
 branch of their jurisdiction to suppress. 
 
 Supposing, however, the meaning of a subpoena 
 to be understood, and that the party on whom it 
 is served has been informed that the object of it is 
 
 * Lord Dtirsley v. Fitzhardingc, 6 Ves. 251. 
 O
 
 194 ON THE PRESENT STATE OF THE 
 
 to obtain his answer, the rules by which the pro- 
 cedure of the Court is guided, offer little encou- 
 ragement to a defendant to prepare it expedi- 
 tion sly, and show too much indulgence to those 
 defendants who are negligent, obstinate, and re- 
 fractory. If a defendant delays or refuses to ap- 
 pear, the plaintiff is obliged, first of all to sue out 
 an attachment, then an attachment with proclama- 
 tions, then a commission of rebellion, then a serjeant 
 at arms, and last of all a sequestration-, as well as 
 to endure the whole expense and delay which these 
 cumbrous proceedings occasion. What is still more 
 strange, a plaintiff must go through every step of 
 this tiresome round, before he can compel the 
 defendant to yield obedience to a decree which 
 the Court has regularly pronounced.* " About 
 " fourteen or fifteen years ago," says Lord C. 
 Baron Gilbert, " they began to shorten the pro- 
 " cess in execution of the decree, for if they must 
 " begin with the attachment, proclamation, commis- 
 " sion of rebellion, and spend all the process, it 
 " would be a year's time before all the process 
 " could be executed so as the plaintiff could have 
 " any effect of his suit ; and therefore they pro- 
 " ceeded to serve the defendant with a copy of 
 " the decree, and upon an affidavit of service and 
 " refusal to obey the decree, they moved that he 
 " might stand committed ; and the practice then 
 " was, immediately to commit him to the Fleet, 
 " and upon a return of non est inventus by the 
 
 * Harrison's Practice, p. 333.
 
 CIVIL LAW OF ENGLAND. 195 
 
 " warden of the Fleet, the Court ordered a se- 
 " questration; but that was complained of by the 
 " serjeant at arms, and on the third day of May, 
 " in the 7th of King George the First, an order 
 " was made that there should be no sequestration, 
 " but upon return of the non est inventus by the 
 " serjeant at arms. This shortening of the pro- 
 " cess was justified by the antient practice of the 
 " Court."* A practitioner of the Court at the 
 same time, loudly complained of " the great num- 
 " ber of processes before you can come to a 
 " sequestration, and the many niceties in suing 
 " and returning them, which frequently is judged 
 " irregular, and the plaintiff pays costs for it, and 
 "is obliged to begin again.t" 
 
 Though it is near a century since Gilbert wrote, 
 that part of the procedure by which Courts of Equity 
 compel obedience to their orders, and of which he 
 so highly disapproved, still maintains its ground 
 though its defects are so extremely glaring. It is 
 dilatory, circuitous, expensive, and unnecessary. 
 The two first of these qualities will not be dis- 
 puted. The third unavoidably follows from the 
 other two, and the charges become particularly 
 heavy when any application is required to be 
 made to the serjeant at arms. This officer is not 
 remarkably qualified for the performance of some 
 
 * Gilbert's Forum Romanum, p. 84. See also Ex parte Jeph- 
 son, Preced. in Chancery, p. 550. 
 
 t Proposals offered to Parliament for remedying the great Charge 
 and Delay of Suits at Law and in Equity, by an Attorney. Lon- 
 don, 1725. 
 
 O 2
 
 196 ON THE PRESENT STATE OF THE 
 
 of the duties which devolve upon him, but if he 
 must continue to discharge them, it ought to be 
 under well-known and specific rules and regula- 
 tions. To none such is he now obliged to con^ 
 form. His fees are complained of -as excessive, 
 and are said to be nearly arbitrary. The whole 
 circle of procedure which has been specified is 
 also shown to be unnecessary, because it is not 
 invariably followed. In the case of a peer. or menv 
 ber of the House of Commons, a sequestration nisi 
 is at once obtained,* by which means the whole 
 of the four first steps commonly taken are avoided, 
 and the process then begins at that precise stage 
 where it on ordinary occasions ends. No reason 
 can be assigned why in this particular, there 
 should be any distinction between members of 
 Parliament and other suitors. If indulgence is 
 to. be shown, members of Parliament are as 
 well entitled to it as any other persons, and as it 
 is not extended to them, it is a strong reason for 
 believing that it need not exist at all. To shorten 
 the process by which a defendant is compelled 
 to appear or perform what the court has ordered, 
 is one of the most obvious, simple and effectual 
 methods of checking the delays with which courts 
 of equity are chargeable. 
 
 3. At the same time that all parties really ne- 
 cessary to a suit should be compelled to yield a 
 ready and unreserved obedience to the man- 
 dates of the court, every precaution should be 
 
 * Wyatt's Register, 387.
 
 CIVIL LAW OF ENGLAND. 197 
 
 taken that no cause should be stopped by the 
 absence of any parties who are in reality super- 
 fluous. Few things retard business in courts of 
 equity more than the multitude of parties whose 
 presence is now deemed essential. The object 
 of courts of equity is to make a complete de- 
 cree between all the parties who have any pre- 
 sent or future interest in the matters in ques- 
 tion, and for this purpose it requires every in- 
 dividual among them to be represented, so that 
 none may be affected who are unheard or unde- 
 fended. Laudable as this end must be admitted 
 to be, it is exceedingly questionable whether it 
 does not create a great deal more hardship than it 
 prevents. In many instances it is impracticable 
 to produce strict legal evidence that all the 
 parties who may be affected by a decree are 
 before the court, and in most cases which occur, 
 the property in question would be exhausted be- 
 fore the inquiries were ended. Take voluntary 
 societies as an example. Many of these consist of 
 several hundred members, and to insist on an an- 
 swer from each before the point in dispute is heard, 
 which the strict practice of the court requires, 
 is to rear up a barrier between litigants and jus- 
 tice, which if they are poor they are unable, and 
 if rich they will not take the trouble to surmount. 
 Even in a common suit, where the parties are 
 numerous, there are so many births, deaths, and 
 marriages, that bills of amendment, revivor, and 
 supplement are endless, and travelling has be- 
 come so common, that it is no easy matter to
 
 198 ON THE PRESENT STATE OF THE 
 
 ascertain how many of them are even within 
 the proper jurisdiction of the court. Lord Ken- 
 yon, when Master of the Rolls, actually assigned 
 the number of parties as a reason why he did 
 not delay a cause for further consideration be- 
 fore he gave his judgment, which he would 
 otherwise have been inclined to do.* And in 
 the same volume it is mentioned " that a case oc- 
 " curred this morning at the Rolls, where a man, 
 " after mortgaging his estate, died, having left all 
 " his property by will to his wife and children, 
 " who were eight in number. The mortgagee 
 " filed a bill to foreclose, and one of the children 
 " being abroad, his honour refused to send it to 
 " an account ;"f upon which circumstance Lord 
 Redesdale, in his Treatise on Pleading, makes 
 the following remarks : " A suit may affect the 
 " rights of persons out of the jurisdiction of the 
 ." court, and consequently not compellable to ap- 
 " pear in it. If they cannot be prevailed upon to 
 " make defence to the bill, yet if there are other 
 " parties, the court will sometimes proceed against 
 " those parties ; and if the absent parties are 
 " merely passive objects of the judgment of the 
 " court, or their rights are incidental to those of 
 " parties before the court, a complete determina- 
 " tion may be obtained; but if the absent parties 
 " are to be active in the performance of a decree, 
 " or if they have rights wholly distinct from those 
 
 * Leslie v. Devonshire, 2 Br. 201. 1 Ves. 523. 
 t 2 Brown's Rep. 277.
 
 CIVIL LAW OF ENGLAND. 199 
 
 " of the other parties, the court cannot proceed 
 " to a determination against them. Hence there 
 " sometimes arises an absolute defect of justice, 
 " which seems to require the interposition of the 
 " legislature."* 
 
 Near forty years have passed away since these 
 observations were first published, but as in other 
 instances of severe and silent suffering, the le- 
 gislature has afforded no relief. It is true the 
 courts of equity are more liberal than they were 
 when Lord Redesdale wrote, but even now they 
 neither do, nor at their own pleasure ought to be 
 allowed to give the whole of that relief to which 
 suitors are entitled. Scarcely an entire sitting of 
 any court of equity passes over, especially on 
 those occasions where incidental applications in 
 the latter stages of a cause are most frequently 
 made, where the judge is not forced to act in op- 
 position to established forms, merely in order to 
 prevent the whole fund in court from being ex- 
 hausted by the costs which the ordinary routine 
 of practice would occasion. This alone proves 
 some remedy to be required, and that which the 
 late Sir William Evans has proposed is the follow- 
 ing: " That at a certain time after return of process, 
 " a decree absolute or conditional, upon affidavit 
 " or otherwise, should be made in the same man- 
 " ner as if the parties had appeared or answered, 
 " and that the court should proceed without 
 " parties who are dead or without the jurisdic- 
 
 * Lord Redesdale on Pleading, 2d ed. p. 30.
 
 200 ON THE PRESENT STATE OF THE 
 
 " tion, and that it should be lawful for the court 
 " in its discretion, and after such inquiry and 
 " investigation, to proceed as it should think 
 " meet. 5 '* Considerable benefit would flow from 
 the adoption of this proposal, but it would still be 
 inadequate. Many parties might be dispensed 
 with altogether, as a sufficient number of persons 
 may be already before the court to support the 
 interest in which they claim, and others though 
 necessary would be contented with a nominal 
 appearance, without taking any share in the con- 
 duct of the cause, and would cheerfully acquiesce 
 in any decree the court might think itself war- 
 ranted to make. To whatever extent the pre- 
 sent rules of courts of equity with regard to 
 parties ought to be relaxed, some relaxation of 
 them would be eminently beneficial. Courts of 
 equity endeavour to give a degree of perfection 
 and completeness to their decrees which human 
 affairs do not admit. It is either impossible to 
 make a final decree between all parties and upon 
 all points connected with a ramified equitable suit, 
 or it is made with such loss of time, money and 
 anxiety as it is painful to contemplate. Under 
 every aspect in which it presents itself, the parties 
 ivhich are held to be necessary to a suit, is a very 
 important part of the law of every country, and 
 one of the branches of procedure in our courts of 
 equity which seems to stand peculiarly in need 
 of examination and amendment. 
 
 * Evans's Statutes, vol. 7. p.
 
 CIVIL LAW OF ENGLAND. 201 
 
 4. When the necessary parties have appeared 
 and put in their answers to the bill, it then be- 
 comes incumbent upon plaintiffs and defendants 
 to determine whether any oral or documentary 
 evidence be necessary, together with the best 
 method of obtaining it. 
 
 With respect to documentary evidence, some of 
 the parties often suffer great hardship from being 
 compelled to prove facts which their opponents 
 do not seriously doubt, but as they possess a right 
 to have them proved, they avail themselves of it 
 in order to reap all the advantages which delay 
 and accident may give them. Take for instance 
 the case of a will, where real and personal 
 estate is made liable for the payment of debts 
 and legacies. Supposing the will to have been 
 proved in Doctors Commons for the purpose of 
 granting administration of the personal estate, 
 should any question arise with respect to the real 
 property in the court of Chancery, the heir may 
 compel any of the legatees to prove the will, and 
 for that purpose, either to prove the death of the 
 witnesses, or to search for them all over the world, 
 and to be at great expense in bringing them to 
 London when found, or in suing out a commis- 
 sion to have their examination taken either abroad 
 or in England. The practice now mentioned 
 encourages this fruitless investigation and con- 
 troversy, and the soundness of the principle on 
 which it is founded may be much questioned. 
 It seems to accord better with the ordinary me- 
 thods of transacting business and the dictates of
 
 202 ON THE PRESENT STATE OF THE 
 
 natural equity, to give the opposite party suffi- 
 cient time and convenient opportunity to inspect 
 every original or exemplified instrument which 
 may be produced, and that it should then be re- 
 ceived as genuine, unless its genuineness be dis- 
 puted. If it is disputed, it is but reasonable that 
 the whole costs, which are thus caused, should 
 abide the result of the inquiry. No instrument 
 would then be produced or impeached unless 
 for substantial reasons, and parties would hesitate 
 before they wantonly incurred an expense, of 
 which they might themselves be obliged to bear 
 the burden. 
 
 The evidence which is given by witnesses in 
 suits in equity, is always reduced to writing 
 before it is presented to the Court, and may ei- 
 ther appear in the shape of affidavits, or of an- 
 swers to written interrogatories, according to the 
 nature of the cause and the stage to which it has 
 advanced. Of these two sorts of evidence, that 
 by affidavit will be almost universally admitted to 
 be the least satisfactory. As individuals are sel- 
 dom obliged by the court to make affidavits, they 
 are generally voluntary, and of all sorts of evi- 
 dence which can be given, that where the wit- 
 ness reveals or withholds the truth at his own 
 pleasure is usually the worst. Those persons by 
 whom affidavits are made are, in half the cases 
 that occur, interested in some way or other; they 
 are almost invariably acting under strong excite- 
 ment ; and the affidavits are usually sworn to 
 upon the faith of their being drawn accurately by
 
 CIVIL LAW OF ENGLAND. 203 
 
 their legal advisers, without sufficient time or 
 pains being bestowed in making them correspond 
 exactly with the truth. Besides this, their num- 
 ber is increased in consequence of those by 
 whom they are made mistaking the points upon 
 which information is required, and the almost 
 irresistible temptation which is held out to exceed 
 the truth, in the concoction of a succeeding affi- 
 davit, when a prior one has been held deficient 
 either in strength or fulness. All these circum- 
 stances are unfavourable to the use of affidavit 
 evidence, and as the petitions which are preferred 
 to the court are in general supported by their 
 means, the encouragement which this species of 
 testimony would receive in case any summary 
 remedy should be allowed upon petition of the 
 parties, forms a strong objection to the introduc- 
 tion of any such measure. The use of affidavit 
 evidence can never be justified except upon the 
 plea of absolute necessity. Whether such neces- 
 sity in any case exists, has been doubted; but 
 no doubt can be entertained at all that the vicious 
 excess to which it has of late years been carried 
 in the court of Chancery ought to be corrected, 
 and that this species of testimony ought invariably 
 to be confined within the narrowest limits to 
 which it can possibly be restricted. The other 
 sort of evidence consists in answers given by wit- 
 nesses upon oath to written interrogatories, which 
 have been prepared under the sanction of the 
 court. These answers are delivered by the 
 witnesses orally, and put into writing at the
 
 204 ON THE PRESENT STATE OF THE 
 
 time of their delivery, by the persons by whom 
 the witnesses are examined. When the cause 
 arises within twenty miles of London, these an- 
 swers are taken by public officers called Exa- 
 miners ; but if beyond that distance, it becomes 
 what is called a country cause, and the answers 
 are then taken by commissioners named by the 
 judge for that special purpose. Commissioners in 
 the country, are said sometimes to put questions 
 to the witnesses which are not contained in the 
 written interrogatories, if by their previous an- 
 swers they have been rendered necessary. The 
 public examiners are said never to deviate from 
 the interrogatories laid before them. To abstain 
 from putting any question to a witness which is 
 not contained in the string of written interroga- 
 tories, however necessarily it may spring out 
 of an antecedent answer, and especially where 
 the subject of examination is intricate or the wit- 
 ness reluctant, is but an unsatisfactory method of 
 eliciting the truth. In addition to this, all exa- 
 minations, whether taken by the examiners or 
 commissioners, must be secret, for which the rea- 
 son usually given is not very convincing; and so 
 strict is the rule, that this examination must be con- 
 ducted either by the examiners or commissioners, 
 that no equity judge has the power of obtain- 
 ing a knowledge of the simplest fact from a wit- 
 ness, either by examination delivered orally or 
 taken in writing. When a motion was made be- 
 fore Lord Hardwicke that a witness might be 
 orally examined, his reply was : "I cannot allow
 
 . ' CIVIL LAW OF ENGLAND. 
 
 *' the motion. The constant and established pro- 
 " ceedings of the court are upon written evidence, 
 " like the proceedings upon the civil and common 
 " law. This is the course of the court, and the 
 " course of the court is the law of the court, and 
 " though there are cases of witnesses being ex- 
 " amined, yet they have been allowed but spar- 
 " ingly, and only after publication where doubts 
 " have appeared in their depositions, and the 
 " examination has been to clear such doubts, and 
 
 " inform the conscience of the court; 
 
 " There never was a case where witnesses have 
 " been allowed to be examined at large at the hear- 
 " ing, and though it might be desirable to allow this, 
 " yet the fixed and settled proceedings of the 
 " court cannot be broke through for it."* While it 
 is clear that the rule of the court is here correctly 
 stated, its excellence as a means of discovering 
 truth is open to very grave objections. That it is 
 inferior to the viva voce examination invariably 
 resorted to at common law, is undeniable. " It 
 " is impossible," said Lord Alvanley, when Mas- 
 ter of the Rolls, " to sit here any time without 
 " seeing that a viva voce examination of witnesses 
 " is much more satisfactory than depositions, 
 " where a possibility of doubt can be raised; and 
 " if ever a case required a viva voce examination, 
 " this is one."f Such a declaration made by a 
 judge who is known to have taken so much pains 
 in the investigation of the principles of equity, as 
 
 * 1 Atkins's Rep. 445. f 4 Vescy's Rep. 762.
 
 206 ON THE PRESENT STATE OF THE 
 
 well as in their practical administration, cannot 
 fail to throw great doubt upon the propriety of 
 depending exclusively upon written evidence, and 
 his opinion receives ample confirmation from the 
 experience of those who are best qualified to form 
 an opinion on the subject. 
 
 Admitting, however, to the fullest extent, the 
 errors or defects of the present mode of obtaining 
 evidence by means of affidavits and depositions, 
 it must of necessity continue until some plan 
 which is more unexceptionable can be substituted 
 in its stead. In this case an effectual remedy 
 will not be easily provided. To send witnesses to 
 be examined viva voce before the courts of common 
 law, would be attended with this inconvenience, 
 that those who practise in them would not be fully 
 aware of the precise information which the court 
 of equity wished to obtain it would be attended 
 with more trouble and many of the questions 
 asked are so difficult to be answered, that previous 
 knowledge and consideration of them is extremely 
 desirable. In some instances this indulgence 
 would do no harm, but in others it would totally 
 destroy the peculiar virtue which viva voce ex- 
 aminations is supposed to possess. Sir W. D. 
 Evans, in his plan for the improvement of the 
 court of Chancery which has been already men- 
 tioned, has proposed to allow masters in Chan- 
 cery and certain sorts of commissioners, to be at 
 liberty to take the depositions of witnesses to. 
 interrogatories, or to examine them orally in any
 
 CIVIL LAW OF ENGLAND. 207 
 
 other manner.* He has not said whether he in- 
 tended that masters and commissioners should be 
 themselves the examiners, but if he did not, the 
 introduction of barristers to examine, while the 
 masters or commissioners should exercise the 
 same sort of superintendence a judge now does at 
 Nisi Prius, is another proposal which may be de- 
 serving of consideration. A third experiment might 
 be made by allowing the judge to have those 
 witnesses examined viva voce before himself, who 
 happen to be present in court, or whose attend- 
 ance he might in his discretion think fit to order. 
 Witnesses may now be conveyed from one place 
 to another so cheaply and expeditiously, that 
 their personal examination would in many in- 
 stances be the most economical as well as rapid 
 and satisfactory method by which the conscience 
 of the court could be informed. Though this 
 last sort of examination is that to which of all 
 others it seems most natural to resort, the extent 
 to which it may be made available in practice has 
 never as far as I know been clearly ascertained. 
 We are apt in this country to assume that viva 
 voce examination can never be beneficially em- 
 ployed except in presence of a jury. This may be 
 true, but until it has been proved by experience, 
 there is nothing in the nature of oral testimony 
 itself which shows such intervention to be requi 
 site. A judge must be presumed to be capable 
 of determining the value or relevancy of evi- 
 dence better than a juror, and where no question 
 
 * Evans's Statutes, vol. 7-
 
 208 ON THE PRESENT STATE OF THE 
 
 arises respecting the amount of damages or the 
 commission of a criminal act, one does not see 
 what useful purpose the presence of a jury is 
 calculated to serve. 
 
 It may be alleged that the variety of the sug- 
 gestions which have now been offered, and the 
 admitted doubtfulness of their success, demon- 
 strate the hopelessness of introducing any mate- 
 rial improvement into this branch of equitable 
 jurisprudence. It is true that the subject is sur- 
 rounded with difficulties, which ought neither 
 to be concealed nor underrated. But as a great 
 practical imperfection is admitted to exist, it 
 seems but reasonable that trial should be made of 
 some of those means most likely to lead to its 
 removal. If any of them prove successful, the 
 public will reap a decided advantage. If they 
 prove abortive, it would be satisfied with the 
 strenuous though unavailing efforts which might 
 be made to supersede those methods of obtaining 
 testimony, which are not only insufficient to ob- 
 tain a disclosure of the truth, but too frequently 
 serve as convenient instruments for its evasion or 
 perversion. 
 
 5. When the examination of evidence has been 
 concluded, and before the cause comes properly 
 to a hearing, or after it has been heard and be- 
 fore the decree which has been pronounced can 
 be carried into effect, it is almost always necessary 
 upon some point or other to obtain a reference to. 
 a Master. There is scarcely any stage of a cause 
 after it has been brought to issue, in which refer- 
 ences to a master may not become necessary.
 
 CIVIL LAW OF ENGLAND. 209 
 
 Whenever any subject of inquiry arises involving 
 too much detail either of facts or figures to be 
 conducted in open Court, it is devolved upon a 
 master for his examination and report. Without 
 throwing out any insinuation against the conduct 
 or capacity of Masters in Chancery, it has long 
 been a prevailing opinion that in many parti- 
 culars the method of conducting business be- 
 fore them is susceptible of improvement. They 
 are now shut up each in his own office, to which 
 none but the parties who go before them have ac- 
 cess. The practice which prevails in one office 
 varies materially from that which prevails in ano- 
 ther, and it sometimes happens that it is difficult 
 to ascertain what the practice of any one office 
 is. Neither are there any means of discovering 
 whether the attendances of masters are as fre- 
 quent, punctual, and of as long duration as they 
 ought to be. To throw open their offices to the 
 public would at once obviate the whole of these 
 objections. Publicity is by far the most effectual 
 restraint imposed upon judges or other public 
 characters, and Masters in Chancery are the only 
 judges upon whom it has not yet been made to 
 operate. Should it ever be extended to them, it 
 is no imputation on their order, to presume that it 
 would produce the same effect it has had upon 
 functionaries of every other rank and description. 
 Their energy would be increased, their attend- 
 ance prolonged, their practice become more uni- 
 form, and the dispatch of business be acce- 
 lerated. There are also subordinate parts of 
 
 p
 
 210 ON THE PRESENT STATE OF THE 
 
 the routine of their offices which are conceived 
 to require alteration. It is generally felt that 
 copy-money ought to be abolished, and mas- 
 ters themselves are now said to be unanimously 
 of that opinion. This would effectually check 
 the length and verbosity of their reports, which 
 has become the subject of such general com- 
 plaint, and is so pointedly prohibited in Lord Co- 
 ventry's orders of 1635. " Whereas the Masters 
 " of the Court do sometimes by way of induce- 
 " ment, fill a leaf or two of the beginning of their 
 " reports, and sometimes more, with a long and 
 " particular recital of the several points of the 
 " orders of reference ; they shall forbear such 
 " iterations, the same appearing sufficiently in the 
 " order, and without any other repetition than 
 " thus According to order, or By directions of an 
 " order of such a date, shall fall directly into the 
 " matter of this report, setting down the matter 
 " clearly, but as briefly as they can, for the sake 
 " both of the Court and the parties."* Masters 
 ought also to be released from the taxation of 
 costs. It is an employment beneath their dignity, 
 and beyond their power to discharge, consistently 
 with the adequate performance of their other 
 duties. It would be better therefore to appoint 
 new officers for that special purpose. Should 
 it still be urged that masters ought to continue to 
 do what they hitherto have done, the reply is, 
 that in reality they have not done it. The taxa- 
 
 * Beames's Orders, p. 81.
 
 CIVIL LAW OF ENGLAND. 211 
 
 tion of costs is a matter to which, for a long time, 
 they have paid little attention. Mr. Mills, in his 
 letter to Mr. Courtenay, maintains it to be imprac- 
 ticable. " That the masters can tax all costs 
 " that pass through their office is out of the ques- 
 " tion. If they do so, it must be to the exclusion 
 " of all other business. Nor could any two, or 
 " even six taxing officers, exclusively appointed, 
 " get through the task. My own daily practice, 
 " in this respect, enables me to speak most posi- 
 " tively. Why, therefore, is it proposed to dis- 
 " turb a practice, which, as it now stands, is of 
 " the greatest convenience to the masters, and I 
 " am bold to say, is of the greatest benefit to the 
 "suitors of the court?"* There may be the 
 strongest reason for the Clerks in Court continuing 
 to act as taxing officers in the manner Mr. Mills 
 proposes, but it is right and proper at the same 
 time, that this should be done ostensibly and di- 
 rectly. Why should the master be supposed any 
 longer to do that of which the clerk in court now 
 positively claims the merit, and why should this 
 last again talk of the immense utility of a clerk in 
 court, when he is in reality a taxing officer ? No- 
 thing can be more mischievous than nominally be- 
 ing one thing and acting as another. It opens a 
 door to every species of irregularity and miscon- 
 ception, and if the press of business or any other 
 cause, requires the relative duties or situation of 
 judicial officers to be altered, the alteration oughjt 
 
 * Mills's Letter to Mr. W. Courtenay, p. 12. 
 P2
 
 212 ON THE PRESENT STATE OF THE 
 
 to be made avowedly by the legislature. Instead 
 of this, to allow an officer to do by means of an 
 unauthorised deputy, that which he is supposed 
 to do himself and which he is well paid for doing, 
 is an arrangement which may be convenient for 
 him, but assuredly is detrimental to the public. 
 
 Another part of the business of masters which 
 might perhaps be devolved upon separate offi- 
 cers, is the taking of accounts. " When an ac- 
 " count is taken," says Lord Hardwicke, " the 
 " Court; by its ancient constitution, is to be 
 " aided in taking it by some proper officer, 
 " as masters now are, because it is impossible 
 " for the Court to take accounts originally, as 
 " that would so take up the time of the Court, 
 ' that justice could not be administered in other 
 " causes."* Masters in Chancery seem therefore 
 to have been selected originally for that purpose, 
 merely because they were the most convenient 
 officers by whom accounts could then be taken, 
 but if others more convenient have since arisen, 
 there is no reason why recourse should not be had 
 to their assistance. Within the last ten or twenty 
 years, a particular class of men has sprung up 
 who devote themselves exclusively to the investi- 
 gation and settlement of accounts, and if a suffi- 
 cient number, of these were attached to the court 
 of Chancery, and made to act as accountant mas- 
 ters, there is reason to believe that matters of ac- 
 count might be settled with far greater celerity 
 
 * 2 Vesey's Rep. 388.
 
 CIVIL LAW OF ENGLAND. 213 
 
 and cheapness than under the present system. 
 To unravel involved or fraudulent accounts is a 
 task to which most masters must necessarily be 
 unequal, and though they were not, the time 
 which is requisite for that purpose would interfere 
 with the performance of their other duties, in the 
 same way that Mr. Mills declares the taxing of 
 costs would be found to do. A course extremely 
 similar to that which has now been pointed out 
 as practicable in Equity, has long been familiar in 
 the House of Lords. Lord Hardwicke says, " The 
 " House of Lords very often in matters of ac- 
 " count which are extremely perplexed and in- 
 " tricate, refer it two merchants, named by the 
 " parties, to consider the case, and report their 
 " opinions upon it, rather than leave it to a jury ; 
 " and I should think a reference of the same 
 (< kind in some measure would be the properest 
 " method in the present case."* It appears by 
 the following passage, that the very same measure 
 which has now been alluded to was proposed for 
 the adoption of courts of Equity upwards of seven- 
 ty years ago. " And forasmuch as sundry suitors 
 " esteem the referring the adjustment of accounts 
 " to a master, both precarious, tedious, and expen- 
 " sive ; therefore they say it will be enacted, that 
 " every suitor may have his option in open court to 
 " declare whether the same shall be adjusted before 
 " a master or by two merchants. If before the 
 " latter, he may then nominate one, and the de- 
 
 * 2 Atkins' Rep. 143.
 
 214 ON THE PRESENT STATE OF THE 
 
 " fendant the other, who legally may be bound to 
 " secrecy, and vested with as ample authority as 
 " any master hath done or could do. But if such 
 " accounts require greater accomplishments than 
 " such merchants are endowed with, or more lei- 
 " sure than they can conveniently spare, in either 
 " case they can substitute one or two able account- 
 " ants (under obligations of secrecy) to liquidate 
 " the same, to whom a reasonable compensation 
 " should be ordered by the constituent, for his or 
 " their trouble, at the expense of the contending 
 " parties ; which accounts, when settled, may be 
 " signed by such merchants, and by the account- 
 ",ant or accountants, if any were deputed, and 
 " delivered with their report to the court, which 
 " will be of equal validity, as if given in and 
 " signed by a Master in Chancery. This, besides 
 " procuring greater dispatch at less expense, 
 ' will prevent the inconvenient deposition of 
 " merchants' books in the master's office, and 
 " the injurious detention thereof when there, and 
 " will also exonerate them from the expense of 
 " paying for their lodging when returned."* In 
 this passage the author points out that precise 
 use of accountants which has for twenty or 
 thirty years past been made in the court of Ses- 
 sion in Scotland, and which might perhaps be ad- 
 vantageously resorted to in courts of Equity in 
 this country. The employment of accountants in 
 the Scotch courts, and the restrictions to which 
 
 Animadversions upon the Present Laws of England, 8vo. 
 Printed for M. Cooper, London, 1749.
 
 CIVIL LAW OF ENGLAND. 215 
 
 it is conceived they ought to be subjected, are 
 explained in the following extracts from the re- 
 port of the evidence laid before the commis- 
 sioners nominated under the commission appointed 
 to report on the appellate jurisdiction of the 
 House of Lords. " In particular cases, such as 
 " accountings where the evidence is of a nature 
 " unfit to be investigated otherwise than by per- 
 " sons of skill, the Lord Ordinary, by the present 
 " practice of the court, instead of ordering a proof 
 " by commission or a trial by jury, finds it more 
 " expedient to remit the whole matter in dispute 
 " to a professional person for his report, subject 
 " to the review of the Lord Ordinary, and with 
 " reservation of all questions of law which may 
 " arise, or such questions of fact as may require 
 " evidence by jury trial, or by proof on commis- 
 " sion. This practice the commissioners are of 
 " opinion ought not to be disturbed."* It is 
 suggested however, and apparently with much 
 reason, that these accountants should either be 
 governed by specific regulations, or constituted 
 ostensible officers of the Court. One of the gen- 
 tlemen whose opinion was asked has expressed 
 himself to the following effect. " Some arrange- 
 " ment ought to be adopted as to accountants. 
 " The greatest delays that take place in the Outer 
 " House are imputed to accountants. Their 
 " charges are also said to be very high. They are 
 " self-created, that is, any man calls himself an 
 
 * Report of the Commissioners on the Appellate Jurisdiction of 
 the House of Lords, p. 9.
 
 216 ON THE PRESENT STATE OF THE 
 
 " accountant that thinks fit. The judge names 
 " the accountant to be employed. Hence they 
 " make interest with the judges for employment. 
 " The agents feel much delicacy in urging them 
 " to dispatch, lest they offend the judge or the 
 " accountant, in whom they may excite a feeling 
 " dangerous to their client. They are at present 
 " attempting to make themselves into a body by a 
 " royal charter, but that won't protect the Court 
 " or the litigants/'* Another witness very ap- 
 propriately suggests " Either that the account- 
 " ant should be brought more nearly under the 
 " cognizance of the judge, or, what I should con- 
 " ceive to be better, there should be a class of 
 " officers of Court, whose duties should resemble 
 " in some degree, what I understand to be a part 
 " of those of a master in Chancery."f The insti- 
 tution of such officers as are here specified, seems 
 a natural and expedient measure in a commercial 
 and wealthy country, where an expeditious and 
 clear statement and arrangement of accounts 
 would materially shorten and simplify the ques- 
 tions which, in an advanced state of society, en- 
 gage so much of the attention of courts of justice. 
 Convenience has caused them to be employed by 
 private persons, and the same convenience seems 
 to indicate that they ought to be employed by the 
 public. Occasional inconvenience would no doubt 
 be sustained by separating the consideration of 
 questions of law from questions of account, and in 
 
 * Appendix to the Report on the Appellate Jurisdiction, p. 150. 
 t Ib. p. 131.
 
 CIVIL LAW OF ENGLAND. 217 
 
 sending part of a cause to one master, and part of 
 it to another ; but it may be worth while to con- 
 sider whether such a division of labour would not, 
 upon the whole, cause suits to be terminated at 
 less expense, and with greater expedition. 
 
 If the law of real property is to remain upon its 
 present footing, conveyancing masters appear to 
 be more obviously necessary than accounting ones. 
 But as it cannot be desirable to multiply the 
 classes or degrees of Masters too .much, it is to 
 be hoped the law of real property will speedily 
 be placed upon such a footing that Masters in 
 Chancery may be expected to report as satis- 
 factorily upon titles, as upon any point connected 
 with equitable law referred to them by the 
 Court. Taxation of costs, and the investigation 
 of accounts, are the two subjects it seems most 
 desirable to withdraw from their jurisdiction, and 
 provided this were done, and precautions taken 
 that they should more generally proceed than they 
 now do de die in diem until a cause were finished, 
 instead of only devoting an hour a day to each 
 cause, business would be dispatched with credit 
 to the court and the masters, and to the satisfac- 
 tion of the public and the parties. 
 
 One point remains to be mentioned. It is di- 
 rected by the 22d of Lord Coventry's orders, 
 which were issued in 1635, that " the register 
 " shall, within ten days after the end of every 
 " term, certify to the lord keeper what references 
 " depend in the hands of any master, -and how 
 " long they have depended, that if any of them
 
 218 ON THE PRESENT STATE OF THE 
 
 " have depended very long, the Court may re- 
 " quire an account thereof from the master, and 
 " quicken him to a speedy dispatch."* Though 
 this appears, by a reference contained in the same 
 page, to have been thought " an ancient and use- 
 " ful practice," it has for a long period been suf- 
 fered to fall so completely into disuse, that even 
 its existence has almost been forgotten. Lord Eldon 
 proposes to attain the same end by a somewhat 
 different plan. He is reported to have said he 
 thought " it would be a very wholesome measure 
 "if -the master was to certify every half year 
 " what has been done in every cause before him; 
 " and in the causes in which but little has been 
 " done, to state whose fault that has been. The 
 " Court woud see better than it has lately done 
 " who ought to be blamed."f Whether one or 
 both of these returns should be required to be made, 
 beneficial consequences could not fail to ensue. 
 They would impose a check at the same time 
 upon judges, masters, registers, and solicitors, be- 
 cause they would form authentic documents 
 which would be always within the reach of the 
 public, and would of themselves form conclusive 
 evidence of any neglect which might exist in the 
 administration of justice. 
 
 6. When the master has made his report, the 
 cause then returns to the judge by whom the re- 
 ference to the master was ordered. It is then 
 brought under his consideration in one of two 
 
 * Beamcs's Orders, p. 131. 
 t New Times of April 3, 1824.
 
 CIVIL LAW OF ENGLAND. 219 
 
 ways : by exceptions to the masters report, which 
 may be by any of the parties who think them- 
 selves aggrieved by it: or by setting down the 
 cause for further directions in order to carry the 
 antecedent decree into full effect. It rarely hap- 
 pens that an equitable suit is finally disposed of 
 without being brought before the judge once or 
 oftener for further directions, and there is perhaps 
 no single part of the procedure of which the ma- 
 nagement is so difficult. The discussion which 
 succeeds is seldom either so regular or intelligible 
 as could be wished. However numerous the 
 parties may be, it does not usually happen 
 that they have had any previous communication 
 with one another. Each comes into Court pre- 
 pared to claim as much and concede as little as 
 he can ; and between a variety of interests which 
 cross each other at every step of the investigation, 
 the judge is obliged to decide upon a variety of 
 contested questions of which he had no previous 
 information, and almost without the possibility of 
 acquiring a distinct perception of the points in 
 which the parties agree, and those in which they 
 differ. In the midst of this intricacy and confu- 
 sion, an opportunity is afforded to counsel who 
 are more skilful than scrupulous, of obtaining an 
 undue advantage for their clients by means of 
 the terms in which they procure the order to be 
 framed, which cannot be altered afterwards with- 
 out extreme difficulty. How far the evil is capa- 
 ble of rectification it would be presumptuous to 
 pronounce with confidence. That some alteration
 
 220 
 
 seems desirable will not probably be denied. At 
 present, when legal rights are urged with so much 
 subtlety on one side, and resisted on the other, it 
 seems both natural and expedient that the liti- 
 gants should as far as possible make both the 
 judge and each other acquainted before hand 
 with the questions which are to be raised, and the 
 names of the parties by whom they are to be dis- 
 puted. Much uncertainty and obscurity would 
 then be removed. All persons concerned would 
 then be prepared to proceed at once to the points 
 at issue between them, to the furtherance of jus- 
 tice, and a great saving both of time k and argu- 
 ment. 
 
 The objections which have been now made to 
 the manner of proceeding in courts of Equity, 
 when causes are set down for further directions, 
 apply equally to that part of the business which is 
 transacted by means of motions. Motions may be 
 made in almost any stage of a cause, and may re- 
 late to any party or subject connected with it, 
 where for the purposes of justice the interference 
 of the court becomes necessary. In former times 
 only casual or unimportant points were brought 
 before judges in Equity in this manner, and they 
 used then to say they " did not care to decide ques- 
 " tions of importance upon motion."* To whatever 
 reason it may be owing, things in this respect are 
 now entirely altered. The state of practice in 
 courts of Equity is such, that it is difficult to 
 
 * Browne's Chancery Reports, vol. i. p. 448.
 
 CIVIL LAW OF ENGLAND., 221 
 
 say what motions may or may not be made. They 
 will always be most numerous where business is 
 conducted with the greatest dilatoriness and irre- 
 gularity, but still considerable latitude must be 
 allowed to them, or else the object of the suit 
 would frequently be lost altogether before the suit 
 itself could be brought to a termination. The fact is 
 that there is scarcely any question however diffi- 
 cult which may not at present be made the subject 
 of a motion. In the report on the appellate 
 jurisdiction of the House of Lords, it is said to 
 have been observed "that many motions have 
 " been made before the Chancellor, the decision 
 " upon which the parties agree shall be (though 
 " not in form yet in fact and substance) a decision 
 " of the cause ; rendering formal hearings of the 
 " cause and further proceedings unnecessary. 
 " Such motions always call for discussion, requir- 
 " ing as much time as if the cause was regularly 
 " heard, and prevent further proceedings in the 
 " court." In motions of this kind, where the par- 
 ties are numerous, and their conflicting rights must 
 be determined by deductions drawn from tedious, 
 involved, and frequently contradictory statements 
 of facts, of which the court often knows nothing 
 till the first counsel begins to read the motion at 
 the bar, it may safely be pronounced impossible for 
 any stretch of intelligence and attention to enable 
 the judge to seize fully and correctly the argu- 
 ments addressed to him, or even the questions 
 that are brought for his decision. Some of the 
 most acute judges who have ever sat upon the
 
 222 ON THE PRESENT STATE OF THE 
 
 bench have complained of the oppressive nature 
 of this part of their duty, and it is such as no 
 human faculties are able adequately to perform. 
 Greater facilities are given to the Common 
 Law judges, though the questions which come 
 before them are a great deal less complicated. 
 Upon one occasion the court of King's Bench 
 " found fault with the paper books sent to them, 
 " in omitting to notice in the margin, the points 
 " intended to be argued, as required by a late 
 " rule of court, of Hil. 38 Geo. 3, which they 
 " observed was not then a new regulation, but ra- 
 " ther a renewal of an old rule made in E.2Jac.2. 
 " They observed that on the present occasion, 
 " their attention had been entirely diverted from 
 " the real point intended to be litigated, by look- 
 " ing to the cause of demurrer assigned."* In- 
 formation of the nature here alluded to is always 
 expedient, and is actually received on many oc- 
 casions now by judges in equity, in those cases 
 where the bill and answer, depositions or affida- 
 vits and other papers in the cause, are carried 
 home by the judge, and examined by him previous 
 to the delivery of his opinion. Why should not 
 some sort of intimation of all but the most ordi- 
 nary kinds of motions be invariably communicated 
 to the judge ? What the precise nature and ex- 
 tent of that intimation should be it is not neces- 
 sary here to settle: but if only a copy of the 
 notice of motion together with the prayer of 
 
 * 2 East's Reports, p. 288.
 
 CIVIL LAW OF ENGLAND. 223 
 
 the bill if any has been filed, and the shortest 
 chronological abstract of the steps that have 
 taken place were forwarded to him the evening 
 before, the information it afforded would probably 
 be extremely welcome. By the help of such a 
 clue, he would be at once enabled to direct his 
 attention to the main points of the arguments em- 
 ployed before him, instead of being obliged to la- 
 bour as he often does at present during a great part 
 of their progress, to comprehend their object. As 
 the difficulty attending the discussion of motions 
 appears to render some change necessary in the 
 manner of bringing them before the court, it 
 seems also advisable to introduce some alteration 
 respecting the rotation in which they are disposed 
 of. There seems no reason why motions should not 
 be enrolled in the same manner as causes and pe- 
 titions, and why they should not, with the excep- 
 tion of a few classes of an urgent nature, be dis- 
 patched in the order in which they are entered. 
 A regulation of this sort would forward several 
 excellent purposes. It would place parties as 
 well as counsel on that footing with respect to pre- 
 audience on which they ought to stand, and it would 
 promote the dispatch of business, by putting a stop 
 to that courtesy which, in the present state of 
 uncertainty, barristers must unavoidably shew to 
 each other, by pointing out the precise time at 
 which every motion must either be struck out or 
 disposed of. 
 
 8. When a motion, petition, or cause has been 
 made or heard, and a decree pronounced, it then 
 becomes the duty of one of the registers to draw
 
 224 ON THE PRESENT STATE OF THE 
 
 up the minutes of the order or decree which the court 
 has pronounced. The quantity of business which 
 presses on the judge, precludes him in most in- 
 stances from giving minute directions for drawing 
 up orders himself, while it is always of moment 
 that the abstract principle upon which they proceed, 
 as well as its application to the particular case, 
 should be expressed clearly and correctly. This 
 is not accomplished with so much facility as has 
 sometimes been apprehended, and intances might 
 be pointed out in this and other countries, where 
 both the law and the parties have materially suf- 
 fered from the carelessness or incompetence of the 
 persons to whom the preparation of the decree has 
 been intrusted. In courts of Equity in England, 
 the province of the registers, both from the number 
 and complexity of the causes which are brought 
 forward, requires a more than ordinary share of 
 industry and acuteness, and when it is adequately 
 discharged deserves to be very liberally rewarded. 
 Whether a rule should be laid down or not as has 
 sometimes been suggested, that they should be 
 always taken from the bar, it is at least fit that 
 they should undergo some course of trial or ex- 
 amination before they are admitted into their office, 
 and not be promoted according to mere seniority 
 as they have hitherto been. They should also be 
 sufficiently. numerous to enable them to enter all 
 orders and decrees within a few days after the 
 judgments have been delivered, and to deliver 
 copies of the judgments to .the parties at a. cer- 
 tain fee, which ought not under any pretence to 
 be exceeded. This grievance is one of the subjects
 
 CIVIL LAW OF ENGLAND. 225 
 
 against which Lord Coventry's orders are particu- 
 larly and properly directed.* Those to whom the 
 practice of the court is most familiar, best know 
 the mischief which delay occasions. It is always 
 harassing ; commonly detrimental to some of the 
 parties ; and on some occasions, as for instance, 
 where attempts are made to steal marriages with 
 wards of the court, frustrates the whole object for 
 which the suit was instituted. It has so happened 
 however, whatever foundation there is for the 
 charge, that the delay which occurs in the re- 
 gister's office, in drawing up orders and decrees, 
 and their enormous length and expensiveness, 
 have always formed one of the chief charges 
 against the practice of the court of Chancery. It 
 was a subject of complaint upwards of a hundred 
 and twenty years ago, that "the deputy registers 
 " have the drawing and passing all orders, and 
 " are paid for the same according to their length 
 " after the rate of three shillings a side, and yet 
 *.' each order must recite the next preceding order, 
 " and generally are included also the allegations 
 " of counsel, especially in orders ex parte and nisi 
 " causa, by which means orders are drawn to a 
 " great length, to the vast charge of suitors, consi- 
 " dering nothing is done almost without a parti- 
 " cular order. Now, if these recitals and allega- 
 " tions were omitted, and nothing taken notice of 
 " but the ordering part, the charge would be 
 *' much abated, and yet the matter may be dis- 
 
 * Bramcs's Orders, p. 75. 
 Q
 
 226 ON THE PRESENT STATE OF THE 
 
 " tinct enough expressed, as it is in rules at law, 
 " where nothing is contained but the ordering 
 " part; and besides, orders would by this means 
 " obtain greater reverence and authority, for many 
 " times the reasons upon which the order seems 
 *' to stand, are very idle and impertinent."* 
 About five and twenty years afterwards, the same 
 charge is repeated in still more positive and 
 pointed terms. " The next," says the writer, 
 " are the Registers, whose fees are exorbitant, and 
 " daily grow upon us more and more. They, 
 " amongst other things, often impose unnecessary 
 " copies of orders upon us, and always take three 
 " shillings for the orders themselves, and make 
 " four of those sides out of one sheet of paper, 
 " written in a very loose hand, and stuffed with 
 " impertinent recitals and suggestions, making 
 " the order a great deal longer than needs, 
 " so that an order in hearing shall sometimes 
 ** come to ten pounds, and by reason of its great 
 " length, they must have a long time to draw it 
 " up in, often three months, unless you give ex- 
 " pedition money. Whereas, if they were drawn 
 " up according to the excellent forms used by the 
 " clerks of the House of Peers, in drawing orders 
 " upon appeals, they would not come to a twen- 
 " tieth part of what some of them do, and might be 
 " drawn up in a day or two ; and if the orders of 
 " the court of last resort can generally be com-' 
 
 * Observations on the Dilatory and Expensive Proceedings in 
 the Court of Chancery, in relation to the Bill now depending in the 
 House of Commons. London, 1701.
 
 CIVIL LAW OF ENGLAND. 227 
 
 " prised in the fourth part, or half a sheet of pa- 
 " per, I do not see why the Chancery orders may 
 " not be so too ; and indeed that part of them 
 " which really is the order, is seldom much 
 " longer. But 'tis the insignificant recitals 
 " makes them so extravagant, and occasion also 
 " much subsequent unnecessary expense, for the 
 " entry, the enrolment, the writ of execution, 
 " and the copies thereof, are all lengthened in 
 " proportion to the order, so that these imperti- 
 " nent recitals are sometimes paid for five times 
 " over."* And even Lord Hardwicke himself, 
 who was so well acquainted with the principles 
 and practice of the court, has unequivocally ex- 
 pressed himself to the same purpose. " I could 
 " wish," says he, " that the orders of this court 
 " were framed with the same simplicity as orders 
 " made by the courts of common law ; and to be 
 " sure in a great many instances they might; but 
 " in some special orders, the recital of the princi- 
 " pal facts which induced the court to make these 
 " orders, are necessarily inserted, and as the 
 " drawing orders in Chancery have been for a long 
 " time practised in this manner, I will not take 
 " upon me to alter the course of them."f It is 
 painful to observe how much it is the practice of 
 public men to postpone improvements which they 
 dare not openly resist. If Lord Hardwicke or 
 
 * Proposals offered to Parliament, for remedying the" great 
 Delay and Charge of Suits at Law and in Equity, by an Attorney. 
 London, 1725. p. 9. 
 
 f 2 Atkins's Rep. 488. 
 
 Q2
 
 228 ON THE PRESENT STATE OF THE 
 
 any of his successors had promulgated a general 
 order to the effect which he has here mentioned, 
 one of the oldest, justest, and most constant com- 
 plaints against the practice of courts of Equity 
 would have disappeared for ever. 
 
 9. In addition to the alterations which have 
 here been specified, two others have at different 
 times been recommended. The object of one of 
 them is to supersede unnecessary motions alto- 
 gether, and that of the other is to obtain relief 
 in certain cases by a more compendious road 
 than that which it is in general necessary to 
 follow. To the first there does not appear to be 
 any objection. The expediency of the last may 
 be more doubtful. All motions seem to be un- 
 necessary which are granted of course, and no 
 good reason can be assigned why the licence 
 which they grant should not be obtained without 
 the interposition of the judge at all. This alter- 
 ation has been often desired, and though the re- 
 lief afforded by it would not be very sensibly 
 felt, it would still be some gain both in point of 
 economy and dispatch, and is even more required 
 now than when it was originally mentioned. " In 
 " the courts of law," it was said, " for things of 
 " course, rules are drawn and entered of course 
 " without special order : but in Chancery, scarce 
 " any thing is to be done without a particular 
 " order pronounced either in court or on petition, 
 " though it may be had for asking for, and cannot 
 " be in justice and by the rules of the court 
 " denied : and therefore this charge of moving
 
 CIVIL LAW OF ENGLAND. 229 
 
 " or petitioning might be spared, if the registers 
 " were ordered to draw up such orders of course 
 " without any particular direction. Now of the 
 " matters grantable of course, there are some, 
 " viz. To refer a bill or answer, or other matter, 
 " for scandal or impertinency ; to refer to a 
 " master; to expunge scandal and tax costs; to 
 " stay proceedings on a cross-bill till the first 
 " bill be answered ; for an injunction on an at- 
 " tachment, dedimus, or time obtained to answer; 
 " to add parties ; to amend the bill without costs 
 " before answer, or with 20*. costs after answer; 
 " to accept exceptions to an answer, though the 
 " timeelapsed; to refer exceptions to an answer; to 
 " refer an examination; for a commission to assign 
 " a guardian and answer, or to plead, answer, and 
 " demur ; to refer a demurrer to interrogatories ; 
 " to refer a plea of a former suit for the same 
 " matter ; for an injunction on bringing money 
 " into court on a bill of interpleader ; to put the 
 " plaintiff to his election to proceed in law or 
 " equity; to dissolve an injunction-nisi on coming 
 " in of an answer; to refer regularity of process ; 
 " for a defendant to dismiss a bill for want of 
 " prosecution ; for a plaintiff to dismiss his own 
 *' bill with 20*. costs, no further proceedings 
 " being had than bill and answer ; to stay pro- 
 " ceedings on a report, exceptions being filed 
 " and 40*. deposited with the register ; to confirm 
 " a report nisi; for a subpoena to rejoin return- 
 " able immediately, and that service on clerks in 
 " court may be good ; for a subp&iia c/ucc.s tcciuti
 
 230 ON THE PRESENT STATE OF THE 
 
 " for deeds and writings confessed in an answer ; 
 " that one appearing with the register on a con-' 
 " tempt, may be examined in four days or stand 
 " committed ; to use depositions taken in a cross 
 " cause ; to examine viva voce at the hearing to 
 " prove deeds and writings; to examine a de- 
 "' fendant saving exceptions ; all orders by con- 
 " sent ; to revive a suit abated on affidavit of 
 " service of subpoena ad revivendum; for a sub- 
 " poena in nature of a scire facias to revive a 
 " decree for a Serjeant at arms on return of a 
 '' commission of rebellion ; and for a sequestra- 
 " tion on return of the serjeant. But if these 
 " several orders were not to be had merely of 
 " course, yet the charge would be much lessened 
 ** if as at law there was a side bar, where soli- 
 " citors might move for these matters."* 
 
 To what precise extent the proposal here made 
 could advantageously be carried, might give rise 
 to some difference in opinion ; but it is well 
 known that numerous trifling matters which re- 
 quire the signature of counsel or to be openly 
 mentioned in court, might be managed perfectly 
 well without any application either to barristers 
 or judges. Whether it would be practicable in 
 certain cases to afford relief summarily by peti- 
 tion, without being obliged to travel through the 
 regular stages of process, when perhaps none of 
 the parties desire it, has frequently formed a 
 
 Observations on the Dilatory and Expensive Proceedings iu 
 the Court of Chancery, in relation to the Bill now depending in 
 the House of Commons. London, 1701.
 
 CIVIL LAW OF ENGLAND. 
 
 subject of conversation. As this is now done in 
 the case of Charities, it has been urged that the 
 same principle might be extended to other in- 
 stances. Lord Rosslyn observed on one occasion : 
 " There would not be much harm if I was em- 
 " powered upon petition to order any person, a 
 '* mere trustee or a mere mortgagee, to convey 
 " the legal estate, but I apprehend I have no such 
 " authority. It must be by bill filed."* An ex- 
 ample perhaps still more closely in point is that 
 of trustees or executors who wish to have the 
 opinion of the court, merely upon the meaning of 
 a particular clause or part of a will, for their own 
 security and direction, and to which they would 
 conform as soon as it is intimated. It is far from 
 certain, however, that the ultimate success of 
 such a measure would correspond with that 
 which has sometimes been anticipated. In the 
 first place considerable apprehension may be 
 entertained that the rights or claims of all parties 
 concerned will not be correctly or sufficiently 
 represented. Unless sufficient provision were 
 made against this, the court would be led into 
 the declaration of an erroneous opinion, either by 
 an erroneous or defective statement, and then 
 twice as much delay, trouble, and expense would 
 be incurred to rectify the mistake as a regular 
 suit would have occasioned. In the next place, 
 if any evidence should afterwards prove to be 
 requisite, which it very generally is though the 
 
 " 2 Vc'scy, jun. Rep. 587.
 
 232 ON THE PRESENT STATE OF THE 
 
 parties do not expect it, there is no other way in 
 which it can be produced, but by means of affi- 
 davits, which are on every ground so objection- 
 able, that their numbers ought to be sparingly 
 augmented. At the same time, there may be 
 some classes of cases in which the opinion of the 
 court pronounced upon the master specified in a 
 petition would be acceptable to all concerned, 
 and there can be no doubt that this summary 
 method of disposing of a suit should be adopted 
 wherever it is practicable. But short cuts rarely 
 bring the parties to their object either most satis- 
 factorily or expeditiously, and it will be found 
 to be a far more effectual method to promote 
 the ends of justice, to render the general course 
 of procedure as plain and direct as possible, than 
 to continue a system which is circuitous or per- 
 plexed, and to give leave to privileged persons to 
 avoid its windings. 
 
 Of some of the Doctrines of Common Law which appear to 
 be questionable. 
 
 FROM what period the Common Law of Eng- 
 land dates its origin has been made the subject 
 of frequent, but not very satisfactory, discussion. 
 ' Our English lawyers," says Hallam, " prone to
 
 CIVIL LAW OF ENGLAND. 233 
 
 " magnify the antiquity, like the other merits of 
 " their system, are apt to carry up the date of the 
 " Common Law, till, like the pedigree of an illus- 
 " trious family, it loses itself in the obscurity of 
 " ancient time. Even Sir Matthew Hale does 
 " not hesitate to say, that its origin is as undis- 
 " coverable as that of the Nile. But though some 
 " features of the Common Law may be dis- 
 " tinguishable in Saxon times, while our limited 
 " knowledge prevents us from assigning many of 
 " its peculiarities to any determinable period, yet 
 " the general character, and most essential parts, 
 " of the system were of much later growth. The 
 " laws of the Anglo-Saxons, Madox truly ob- 
 " serves, are as different from those collected by 
 " Glanvil, as the laws of the two different nations. 
 " It is difficult to assert any thing decisively as to 
 " the period between the conquest and the reign 
 " Henry II., which presents fewer materials for 
 " legal history than the preceding age; but the 
 " treatise denominated the Laws of Hen. I., com- 
 " piled, at the soonest, about the end of Stephen's 
 " reign, bears so much of a Saxon character, that 
 " I should be inclined to ascribe our present 
 " Common Law to a date, so far as what is gra- 
 " dual has any date, not much antecedent to the 
 " publication of Glanvil."* It is of less practical 
 utility however to trace its history, than to endea- 
 vour to ascertain with precision what significa- 
 tion the words Common Law are at present gene- 
 
 * Hallam's History of the Middle Ages, vol. ii. p. 191. Isted.
 
 234 ON THE PRESENT STATE OF THE 
 
 rally supposed to bear ; in what books or records 
 its rules are to be found ; or what length of pro- 
 bation is necessary before any doctrine or custom 
 can be received as a component part of the system. 
 The words Common Law are now held to com- 
 prise all recognised doctrines and customs when- 
 ever and however introduced, which are neither 
 to be found in the statute book, nor depend 
 on the adjudication of courts of Equity. This 
 vague method of expression may in most in- 
 stances sufficiently answer the purposes of con- 
 versation or of courts of justice, but cases now and 
 then occur, in which the difficulty of giving an 
 exact definition or description of Common Law has 
 occasioned much perplexity and difference of 
 opinion. In the great question respecting the 
 exclusive right which the Common Law was sup- 
 posed to give an author in a literary work, the 
 foundation and properties of Common Law were 
 discussed with greater learning and ability than 
 have since been employed upon the subject. Mr. 
 Justice Willes there explicitly declares " that prin- 
 " ciples of private justice, moral fitness, and public 
 " convenience, when applied to a new subject, 
 " make common law without a precedent ; much 
 " more when received and approved by usage."* 
 Whether this view of the Common Law is correct 
 or not, it is certainly not the general notion en- 
 tertained respecting it. Mr. Justice Aston how- 
 ever goes a great deal farther. " The Common 
 
 * MHlar v. Taylor, Burrows' Rep. v. iv. p. 2312.
 
 CIVIL LAW OF ENGLAND. 235 
 
 " Law/' he observes, " now so called, is founded 
 " on the law of nature and reason. The grounds 
 *' and principles are drawn from many different 
 " fountains., says Justice Doddridge, in his English 
 " Lawyer, from natural and moral philosophy, from 
 " the civil and canon law, from logic, from the 
 " use, custom, and conversation among men, col- 
 " lected out of the general disposition, nature, 
 *' and condition of human kind ;" and afterwards 
 adds, " which observations I make upon its ge- 
 " neral name, to free it from the imputation of 
 " there being any thing restrictive of its efficacy 
 " in the name itself, or that it is not equally com- 
 " prehensive and co-extensive with the principles 
 " and ground from which it is derived. The 
 " Common Law, so founded and named, is uni- 
 " versally comprehensive. In respect to the se- 
 " veral species of property, though the rules touch- 
 " ing 1 them must ever have been the same, yet the 
 " objects of it were not all at one time known to 
 " the common law, or to the world."* Mr. Justice 
 Yates's opinion is diametrically opposite. " To 
 " constitute a legal custom it must have these two 
 " qualities : First, a custom must import some 
 " general right in a district, and not a few mere 
 " private acts of individuals. And in the next 
 " place, such custom must appear to have existed 
 " immemorially. All customs operate, if they have 
 " any operation, as positive laws. The mere fact 
 " of usage will be no right at all in itself; but 
 " when a custom has prevailed from time imme- 
 
 * Burrows' Rep. v. iv. p. 2343.
 
 236 ON THE PllESENT STATE OF THE 
 
 " morial, it has the evidence of some immemorial 
 " law. If the custom be general, it is the law of 
 '* the realm, if local only, it is the lex loci, or law 
 " of the place. Now all laws are general as far 
 " as the law extends, and all customs of England 
 " are of course immemorial. No usage, therefore, 
 " can be a part of that law, or have the force of a 
 " custom, that is not immemorial."* Lord Mans- 
 field, on the other hand, differs from Mr. Justice 
 Yates, and supports the doctrine of Mr. Justice 
 Aston. " From what source then," he asks, " is 
 " the Common Law drawn, which is admitted to 
 " be so clear, in respect of the copy before pub- 
 " lication ? From this argument, because it is 
 " first, &c. I allow them sufficient to shew, it is 
 " agreeable to the principles of right and wrong, 
 " the fitness of things, convenience and policy, 
 " and therefore to the Common Law to protect 
 " property before publication. "f The vagueness 
 and inconsistency of the notions which here appear 
 to have been floating in the minds of some of the 
 ablest doctors who ever sat in Westminster Hall, 
 upon so fundamental an article of judicial faith, 
 must necessarily create much doubt and perplex- 
 ity respecting the foundation upon which a large 
 portion of the Common Law of England.really rests. 
 Part of it appears to consist of customs which 
 are, in the strict acceptation of the term, immemo- 
 rial; part of it upon customs which are admitted 
 to be not immemorial, though in courts of law pre- 
 
 * Burrows' llep. v. iv. p. 236'8. f Ib. p. 2399.
 
 CIVIL LAW OF ENGLAND. 237 
 
 sumed to be such ; and perhaps the most consider- 
 able portion of the whole is composed of determi- 
 nations and resolutions of the judges, proceeding 
 upon analogy, public policy, and natural justice. 
 It is somewhat surprising that no attempt should 
 .ever have been made in England to make an en- 
 tire or partial collection of the rules of the Com- 
 mon Law, or at least to render its general maxims 
 and principles more public and specific. The 
 French Customary law began to be systematised 
 by Charles VII., lingered till Louis XII., and was 
 completed a little before the end of the reign of 
 Henry IV. in 1610. Its reformation is said to 
 have been nearly completed about the beginning 
 of the Revolution in 1 792. * 
 
 The words Common Law, in the course of the 
 observations which are now about to be made 
 upon a few of its doctrines, are used in their 
 widest signification. They are intended to em- 
 brace the whole of that code, whether founded 
 upon statute, usage, or precedent, which is now 
 administered in the common law courts of West- 
 minster Hall. Into any general inquiry into its 
 abstract or comparative merits as they appear 
 in practice, it is not necessary to enter. That 
 branch of the Common Law which relates to 
 real property, always was in some respects 
 repugnant to natural justice, and in others has 
 now become antiquated and inconvenient. That 
 which relates to personal property, rights, and 
 
 * Butler's Reminiscences, p. 48.
 
 238 ON THE PRESENT STATE OF THE 
 
 obligations, arose in better times, and is entitled 
 to greater commendation. Such of its provisions 
 as relate to the liberty of the subject, and to the 
 trial of every question which may arise between subject 
 and subject, or between a subject and the crown, are 
 entitled to the warmest expressions of admiration 
 and regard. These branches of Law constitute 
 perhaps the most valuable portion of the municipal 
 code of every kingdom, and that of England is in 
 this respect superior to every other which has exist- 
 ed in ancient or modern times. It must also be ac- 
 knowledged that most of its leading maxims and 
 positions, are well calculated to promote just 
 feeling and correct conduct among the members 
 of that community for whose government they are 
 intended. While every candid inquirer will feel 
 himself bound to bear this testimony in its favour, 
 it cannot on the other hand be dissembled that it is 
 chargeable with very considerable errors and de- 
 fects. Whether they owed their origin to con- 
 fined information, passion, prejudice, or the exi- 
 gencies of a fiercer age, they are not reconcile- 
 able to the enlarged views now entertained with 
 respect to justice or sound policy. Some instances 
 of those which seem to come under this descrip- 
 tion shall now be brought into notice, for the pur-: 
 pose of demonstrating the benefit which the Com- 
 mon Law would derive if it were subjected to a 
 careful and complete survey. 
 
 1. The first class of doctrines of which the ex- 
 pedience may be doubted, are some which appear 
 to clog the administration of justice. As the
 
 CIVIL LAW OF ENGLAND. / y 
 
 Common Law of England is now administered 
 sufficient bail is not always taken to ensure the 
 appearance of the party from whom it is exacted ; 
 it does not permit the outer door of a dwelling 
 house to be broken open upon civil process ; and 
 as it has no public prosecutor, it devolves the 
 duty of prosecution on the party who has sus- 
 tained the injury, and who is not always the best 
 able or most willing to discharge it. 
 
 That " excessive bail had been required of per- 
 " sons committed in criminal cases, in order to 
 " elude the benefit of the laws made for the liber- 
 " ty of the subject," is one of the grievances most 
 justly complained of in the Petition of Right, and 
 of which the redress was anxiously secured by 
 the act of settlement.* On the other hand, to 
 rest satisfied with insufficient bail for the appear- 
 ance of those who are accused of having com- 
 mitted or attempted a criminal act, is not less 
 dangerous and reprehensible. It can be viewed 
 in no other light than as a bribe received by 
 the law with the one hand, for conniving at the 
 escape of an accused individual, which it is pre- 
 tending to secure with the other. There is no 
 difficulty in fixing either theoretically or practi- 
 cally the amount of bail which ought to be taken. 
 It ought neither to exceed or fall short of the sum 
 which is sufficient to ensure the appearance of the 
 person accused to answer the charge preferred 
 against him, and it must depend so completely 
 on his fortune, character, and rank in life, that a 
 
 * I Will. & Mary, sess. 2. c, 2.
 
 240 ON THE PRESEXT STATE OF THE 
 
 hundred thousand pounds may be less adequate 
 bail in one instance, than forty shillings in an- 
 other. If it is expedient that bail to a large 
 amount should never be demanded, let it be so 
 enacted, and the consistency between the letter 
 and practice of the law will then be restored. 
 This consistency however could only be pur- 
 chased at the expense of its impartiality. It 
 would give an advantage to the rich over the poor, 
 which no arguments drawn from the feelings of 
 the prisoner, or the consequences which his ex- 
 posure might bring upon his friends, relatives and 
 society can ever fairly justify. If an ear is lent to 
 considerations of this nature they would soon lead 
 to every species of partiality and iniquity. If on 
 the contrary the present law with respect to bail 
 be equal and expedient, as I believe it is, then 
 the law ought to be expounded in such a manner 
 that it could neither be misunderstood nor evaded. 
 The judicial officers by whom bail is taken would 
 then be deprived of every excuse for departing 
 from its letter and spirit, and no public injury, but 
 much substantial benefit, would probably be found 
 to result from its honest and uncompromising 
 execution. 
 
 While the provisions of the law with respect to 
 bail seem to stop the course of justice in conse- 
 quence of being, in some cases, insufficiently en- 
 forced by its officers, the law itself appears to con- 
 tribute to the same effect by conferring upon the 
 outer door more extensive privileges than are 
 known in any other country. Blackstone expressly
 
 CIVIL LAW OF ENGLAND. 241 
 
 says, " that no outer door can be broken open to 
 " execute legal process."* Mr. Justice Best is re- 
 ported to have lately said, " This is the general 
 " doctrine, and no officer with respect to the exe- 
 " cution of a civil warrant has a right to break it 
 " open, except for the apprehension of persons 
 " guilty of felony, suspicion of felony, breach of 
 " the peace, or for the recovery of a penalty due 
 " to the King."f However popular this doctrine 
 may be, especially among those who apprehend 
 they cannot be secured against legal process in 
 any other manner, it is exceedingly difficult to con- 
 ceive how it ever came to be established. Instead 
 of forming an original part of our constitution, it 
 would appear, when traced to its source, to rest 
 upon no other foundation than a single decision 
 of the judges in the 18th of Edward IV. J, delivered 
 without reasons and since followed without ac- 
 quiescence. Justice Popham doubted not long 
 after the first determination, whether the outer door 
 was privileged, " because it would be a hinderance 
 " to justice ;" and Mr. Justice Foster, to whose 
 authority on such points, as much respect is due as 
 that of any judge who ever sat in an English court 
 of justice, has observed that " the rule that every 
 " man's house is his castle, when applied to ar- 
 " rests on legal process, has been carried as far as 
 
 * Blackstone's Commentaries, v. iv. p. 223. 
 t New Times, March 5, 1824. 
 
 J See Cowper's Reports, Part I. where the authorities are fully 
 examined. 
 
 Semaine's Case, in Yelv. Mich. 44 Eliz. 
 
 R
 
 242 ON THE PRESENT STATE OF THE 
 
 " political justice will warrant, and perhaps further 
 " than in the scale of reason and sound policy 
 " they will warrant."* There is very little doubt 
 that it has, and for this reason among others, that 
 though so well known at Common Law it is quite 
 unknown in Equity. But if it is good in courts 
 of Common Law, it ought to be equally good in 
 courts of Equity, where it has in no instance been 
 adopted. By the practice of that court, doors are 
 broken open without ceremony, and the person of 
 the defendant seized, both before and after decree, 
 in the ordinary course of process."!" And why 
 should it be otherwise ? As long as a warrant 
 to arrest 'is regularly issued, nothing whatever 
 should resist it. That no outer door should be 
 broken open at unseasonable hours, in order to 
 arrest an individual upon civil process is indis- 
 putable; but at all due hours there seems no rea- 
 son why he should not be seizeable whenever and 
 wheresoever he can be met with. To compel an 
 officer armed with the authority of a court of 
 justice to stop at a locked outer door after having 
 due notice of his errand and office, and to post 
 himself in ambuscade like a thief or assassin, 
 until he can surprise the individual whom he durst 
 not directly and deliberately coerce, certainly ap- 
 pears a barbarous and demoralising institution. 
 The more the subject is considered, the more un- 
 accountable it cannot fail to appear, that a pro- 
 ceeding which has the demerit of being at once 
 
 * Foster's Crown Law, tit. Homicide. 
 
 t Dickens, p. 6p5. 2 Merivale's Rep. 397.
 
 CIVIL LAM' OF ENGLAND. 243 
 
 timid and insidious, should have found a place in 
 the jurisprudence of a free and enlightened people. 
 It is favourable only to those to whom no favour 
 ought to be extended ; it increases instead of di- 
 minishing the resistance which is made to legal 
 process ; and is subversive of that reverence and 
 submission which should be yielded to every 
 part of judicial administration. 
 
 It has also been supposed that the regular and 
 energetic dispensation of justice has suffered 
 from the want of a public prosecutor. In a com- 
 munity, living under the protection of good and 
 equal laws, the prosecution of offences against 
 the public may either be committed to a public 
 prosecutor, left to the prosecution of those indivi- 
 duals who have been injured, or it may be per- 
 mitted either to the public prosecutor or private 
 party, in case he who had the prior right should 
 forbear prosecuting. The law of England has 
 adopted none of these courses. For great state- 
 offences a public prosecutor is appointed, but for 
 criminal offences of an inferior nature, of which 
 the bulk of those which occur are known to con- 
 sist, it neither has authorised a public officer to 
 act, nor permits the private party to forbear from 
 acting. How private individuals became by law 
 compellable to prosecute, does not distinctly ap- 
 pear. The statute of 2 & 3 Philip & Mary, c. 10, 
 only empowers magistrates to bind the parties 
 mentioned in it to give evidence, but not to bind 
 them over to conduct the prosecution. The prac- 
 tice of binding over to prosecute, however, has 
 
 R2
 
 244 ON THE PRESENT STATE OF THE 
 
 now become so inveterate, that it is considered to 
 to be as well settled as any part whatever of the 
 Common Law. The utility of such an arrangement 
 is supposed to consist in this, that as private per- 
 sons are made the prosecutors, the practical seve- 
 rity of the laws must necessarily be proportioned 
 to the general feelings entertained respecting the 
 enormity of the crime committed, and because it 
 increases the interest which the public takes, both 
 in the provisions of the law and its execution. 
 Perhaps neither of these objects is so effectually 
 attained as is usually supposed. The alacrity or 
 reluctance shewn by a private party to institute a 
 prosecution, and his activity or remissness in con- 
 ducting it, are among the most fallacious tests by 
 which the general opinions of the public respect- 
 ing the expediency of the criminal laws can be 
 estimated; and so far from increasing the interest 
 of the public either in the state of the law or 
 its execution, it frequently produces a rooted ab- 
 horrence to both. To compel a person who has 
 been injured in his person or property to submit 
 to the further trouble, anxiety, and expense, 
 which a prosecution unavoidably occasions, and 
 for which the indemnification he receives by the 
 25 Geo. 2. c. 36, 18 Geo. 3. c. 19, and 27 Geo. 3. 
 . 3, amounts to no adequate compensation, is felt 
 to be so severe an exaction that the fulfilment of 
 it is evaded as far as it can. The consequence 
 is, that the suit which the private party is bound 
 to institute is usually brought merely for the sake 
 of form, to save the forfeiture which would be
 
 CIVIL LAW OF ENGLAND. 245 
 
 incurred by non-prosecution, and is pursued with 
 so much carelessness before the tribunal where it 
 is brought, as to ensure the acquittal of the cri- 
 minal. What is worse, in many of the nightly 
 quarrels and offences by which the public tran- 
 quillity, especially in large towns, is principally 
 disturbed, the magistrate before whom they are 
 brought for investigation, frequently sees and 
 hears them compounded for between the com- 
 plainant and defendant, without being able effec- 
 tually to prevent a species of compromise which is 
 in itself as prejudicial to the cause of justice as the 
 offence of w % hich it then becomes the termination. 
 The compensation which, during the middle ages, 
 was, in the case of murder and manslaughter, 
 given to the relatives of the deceased, is now in 
 offences of a less atrocious description, given by 
 way of indemnification to the individual himself 
 who has suffered. The public, whose interest it 
 is that such deeds should be repressed, or pu- 
 nished if they are committed, is left almost en- 
 tirely unprotected, and the probability or rather 
 certainty of being able to buy off' the prosecutor 
 if the offender should be arrested, is the cause of 
 many offences which otherwise never would have 
 been committed. The grand objection to a pub- 
 lic prosecutor, arises from the change it would 
 make in the law, and the danger of delegating to 
 comparatively subordinate officers that discretion- 
 ary power with which they must necessarily be 
 intrusted. As they could not conveniently be 
 placed under the superintendance of the Attorney
 
 246 ON THE PRESENT STATE OF THE 
 
 General, they must be guided in the selection of 
 the cases they prosecute by their own discretion, 
 as the indiscriminate prosecution of all offenders 
 would be incompatible either with wisdom or hu- 
 manity. Upon duly weighing the arguments for 
 and against the appointment of a public prosecu- 
 tor, it is not easy to determine which scale pre- 
 ponderates. The public hitherto really knows 
 little of the practical effect which the present law 
 produces; and the examination of the magis- 
 trates of the metropolis, or of some other persons 
 personally acquainted with the effects which result 
 from intrusting prosecution for criminal offences 
 of a minor nature to the injured party, appears to 
 be one of the first steps which ought to be taken 
 in order to come to a right understanding on the 
 subject. 
 
 Justice is also often impeded, or defeated, by 
 that law which requires that all criminal offences 
 should be inquired into as well as tried in the 
 county where they are alleged to have been 
 committed. This regulation may be ascribed 
 partly to the division of the kingdom into counties, 
 and partly to the humane endeavour to try all 
 causes at the least possible cost and trouble, and 
 in that place where the jury was likely to be the 
 best judges of the value of the evidence. But the 
 variety of exceptions to the general rule which 
 have at different times been introduced, the facility 
 of communication now established between diffe- 
 rent parts of the country, and the shameful 
 escapes from justice which the general rule has
 
 CIVIL LAW OF ENGLAND. 247 
 
 unfortunately occasioned, make it desirable that 
 it should be subjected to some modification. In 
 a large proportion of the causes which are tried, 
 as for example, with respect to murder and homi- 
 cide ; stealing money, cattle, goods, or effects ; 
 offences against acts imposing taxes; the plun- 
 dering of ships ; the black act ; offences against 
 the coin ; the destruction of ships and dockyards ; 
 and various others,* it is so difficult to charge or 
 prove in what precise district jurisdiction or 
 county, the primary or collateral facts were begun 
 carried on or completed, that let the pleadings be 
 drawn with whatever skill and care they may, so 
 many technical objections may be offered, either 
 during the trial or in arrest of judgment, that 
 doubts are apt to spring up in the mind, whether 
 the law be really intended for the protection or 
 the punishment of the guilty. 
 
 As the rules which now exist with respect to 
 the limits of jurisdiction seem to be too favour- 
 able to persons tried for criminal offences on the 
 one hand, it has been thought too severe on the 
 other to deny them the benefit of counsel, except 
 for the purpose of cross-examining the witnesses 
 for the prosecution, and to examine those who 
 may be adduced in their own favour. It was long 
 ago strongly pressed by Sir Bulstrode White- 
 locke, " That a man for a trespass to the value 
 " of sixpence may have a counsellor at law to 
 " plead for him, but that where life and posterity 
 " were concerned, he was not allowed that privi- 
 
 * Starkie on Criminal Pleading, vol. i. pp. 1- 30.
 
 248 ON THE PRESENT STATE OF THE 
 
 " lege, and the assistance of lawyers. He was of 
 " opinion that a law to reform that defect would 
 " be just, and that what was said in vindication or 
 " excuse of that custom, That the judges were 
 " counsel for the prisoners, and were to see they 
 " should have no wrong done them, had but little 
 " weight in it ; and were they not to take the same 
 " care of all causes that came before them ?"* 
 Notwithstanding the force of these observations, 
 to allow counsel to speak for the prisoner would 
 probably prove in reality an injury and not a 
 benefit, and seems calculated to promote so po- 
 pular a manner of conducting both the prosecu- 
 tion and defences of criminal causes, that there is 
 reason to apprehend the introduction of it would 
 not be favourable to the ends of justice. If any 
 change were to be made, it would perhaps be 
 better effected by preventing counsel from ad- 
 dressing the court against them, than to counter- 
 act these speeches by afterwards hearing others in 
 their justification. The indictment, libel, or sum- 
 mons, which sets forth the c'ause of trial, ought to 
 be made sufficient of itself if it is not so now, to 
 enable the jury to understand the nature and con- 
 nection of the different parts of the evidence. To 
 allow counsel to give either a dry detail or exag- 
 gerated statement of circumstances which have not 
 been proved and perhaps have no existence, can 
 never assist the understandings of the jury though 
 it may easily pervert them. 
 . The last point respecting this part of the law 
 
 * Ljvcs of the Chancellors, vol. i. p. lip.
 
 CIVIL LAW OF ENGLAND. 
 
 which it seems necessary to mention, is the benefit 
 of clergy. Happily for the welfare of the laity as 
 well as good order of the church, all persons who 
 would have been entitled to the benefit of clergy, 
 have in this country long been amenable to the 
 same penal laws which restrain every other de- 
 scription of their fellow subjects. Upon what 
 ground then, or for what purpose, is this antiquated 
 phrase, and the idle ceremony which is required 
 to give it effect, of compelling those convicted of 
 felonies not capital, on their knees to beg the be- 
 nefit of the statute, retained with so much perti- 
 nacity? On whatever occasion the benefit of 
 clergy is heard of, no principle or practice is 
 called up in the mind which do not run counter 
 to the very first principles of justice ; and in the 
 present state of society and advancement of know- 
 ledge it seems high time that all name and men- 
 tion of so odious and unreasonable an exemption 
 should be totally abolished. 
 
 2. A second branch of the Common Law of ex- 
 tremely suspicious utility is that which relates to 
 the acquisition and descent of real estates. In 
 speaking of the rights or estates in real property 
 which the law now permits a man to acquire by 
 wrongful acts, Chief Justice Mansfield expresses 
 himself thus : " The case will now be decided upon 
 " the last point, and since it will consequently be 
 " unnecessary to decide on any of the points argued 
 " in the court of King's Bench, where this objec- 
 " tion was never touched on, it must not be at all 
 " inferred or supposed that the authority of the
 
 " judgment of that court is in any respect im- 
 " peached by this decision. We could not at 
 " present give judgment on these points, because it 
 " would first be necessary minutely to examine the 
 " old authorities, which, upon the present grounds 
 " of our decision, it would be superfluous to do. 
 " If the doctrine of estates arising by disseisin, 
 " is such as has been stated by the defendant's 
 " counsel, we must lament that the law is such. 
 " Our ancestors got into very odd notions on 
 " these subjects, and were induced by particular 
 " reasons, to make estates grow out of wrongful 
 " acts. The reason was, the prodigious jealousy 
 " which the law always had of permitting rights to 
 " be transferred from one man to another, lest the 
 " poorer should be harassed by the rights being 
 " transferred to more powerful persons. Hence 
 " arose all the law of maintenance, which, if 
 " strictly adhered to, one does not see how a poor 
 " man could, at this day, possibly recover a 
 " right."* Various other particulars might be spe- 
 cified relative to the acquisition of estates by 
 wrongful acts, in which the notions of our jances- 
 tors are no less odd than those here mentioned 
 with respect to disseisin and maintenance. The 
 whole doctrine of the law of England respecting 
 intrusion, abatement, discontinuance, and deforcement, 
 though not productive of so much actual wrong 
 as might be expected, still continues to form an 
 integral part of the law of the land, is unsuitable 
 
 * Taunton's Rep. v. i. p. 6 13. 1 Burrows' Rep. 1 13.
 
 CIVIL LAW OF ENGLAND. 251 
 
 to the present times, and occasionally works con- 
 siderable practical inconvenience and injustice.* 
 Some of the rules of descent which are still in 
 force, appear in the present day to be equally 
 strange and objectionable. Lord Rosslyn has re- 
 marked, that " There are some rules of descent 
 " that do not exactly square with the common 
 " feelings of mankind in the present state of so- 
 " ciety. That rule carrying the estate of the son 
 " to the uncle instead of the father, that the fa- 
 " ther must take through the uncle, and cannot 
 " take directly from the son, strikes one as very 
 " hard. In many cases the rule that makes the 
 " sister of the whole blood take in preference 
 " to the brother of the half blood, contradicts the 
 " common apprehension of mankind, and the ge- 
 " neral convenience of families/'f The whole of 
 these antiquated doctrines ought at once to be 
 swept away, and their place supplied by a few 
 plain and comprehensive maxims, adapted to the 
 times in which we live, and such as would recom- 
 mend themselves to the good sense both of law- 
 yers and the public. 
 
 3. A third part of the Common Law of England 
 which might be submitted to re-examination is 
 that which pronounces agreements without consi- 
 deration, otherwise termed voluntary agreements, 
 to be invalid. By the law of all countries, certain 
 requisites are necessary to make agreements bind- 
 
 * Blackstone's Commentaries, v. iii. c. 10. 
 f Vesey, Jun. Rep. v. ii. 426.
 
 252 ON THE PRESENT STATE OF THE 
 
 ing, and particularly those which are of a voluntary 
 nature. By the Roman law, a mere nudum pactum 
 was inoperative, but whether this extended to writ- 
 ten agreements or not, is uncertain.* By the law 
 of England, deeds which are signed, sealed, and 
 delivered, are deemed instruments of so high and 
 formal a nature, that they are binding on those by 
 whom they are executed, whether there has been 
 any consideration or not. Agreements, though 
 in writing, are not binding without sealing and 
 delivery, unless entered into for a valuable con- 
 sideration. " It is undoubtedly true," Lord Chief 
 Baron Skynner remarked when delivering the 
 opinion of the judges in the House of Lords, 
 " that every man is, by the law of nature, 
 " bound to fulfil his engagements. It is equally 
 " true that the law of this country supplies no 
 " means, nor applies any remedy, to compel the 
 *' performance of an agreement made without 
 " sufficient consideration. Such agreement is 
 " nudum pactum ex quo non oritur actio ; and what- 
 " soever may be the sense of this maxim in the 
 " civil law, it is in the last-mentioned sense only 
 " it is to be understood in our law."| In our 
 courts of Equity, the doctrine is the same as at 
 Common Law. If a voluntary deed is regularly 
 executed by signing, sealing, and delivery, it is 
 
 in-,., '."{.'a.vO'.) \ . . i ; '.. .: 
 
 * See Vinnius, lib. 3. tit. De Obligationibus, p. 5<X>- and De 
 
 Pactis, cap. 5. 
 
 f 7 Term Reports, 350. Rann v. Hughes. Bracton, cap. 1. 
 
 De Actionibus, and Plowden, 308 b. who trace its progress in the 
 
 Law of England.
 
 CIVIL LAW OF ENGLAND. 253 
 
 held good in equity as well as at law without con- 
 sideration. This is not the case with voluntary 
 agreements, even though in writing. Unless a 
 valuable consideration has been given to the per- 
 sons by whom agreements have been entered into, 
 courts of Equity will not interpose either to en- 
 force or obstruct their execution. That some 
 shape or form which implies a determinate act of 
 the mind should be necessary to give validity to 
 most kind of agreements cannot be doubted ; but 
 there is no apparent reason why every agreement 
 which is in writing, and signed by those who are 
 parties to it, and especially if in the presence of 
 witnesses, should not be executed by courts of 
 Equity, whether it has been entered into gratui- 
 tously or not. Grotius and Puffendorff* as well as 
 Chief Baron Skynner, both lay it down as a prin- 
 ciple, that by the law of nature every man is 
 bound to fulfil his engagements, and the only ex- 
 ceptions to its operation are cases of fraud or 
 surprise against which courts of Equity invariably 
 afford a remedy. If voluntary agreements were 
 rendered in equity equally binding with others, 
 it would save much trouble to which courts of 
 Equity are now put in inquiring whether an agree- 
 ment has been entered into for a valuable consi- 
 deration or not, and would supersede a great deal 
 of the inconclusive and inconsistent reasoning 
 with respect to the nature and amount of the con- 
 sideration, upon which their opinions and deter- 
 minations on this subject have proceeded. And 
 
 * Grotius de Jure Belli & Pacis, lib. 2. cap. 11. De Promissis. 
 Puffendorff, lib. 3. cap. 5.
 
 254 ON THE PRESENT STATE OF THE 
 
 what harm would ensue, if voluntary agreements 
 reduced to writing and signed by the parties, 
 were good even in courts of Common Law against 
 all the world? It would sometimes bear hard 
 upon those who enter into gratuitous agreements 
 to have them enforced against them ; but the in- 
 validity and revocation of gratuitous agreements is 
 no less hard at present upon those in whose favour 
 they have been executed, and who may have been 
 induced by them to enter into obligations and re- 
 lations which they would not have otherwise con- 
 tracted. Indeed it may be fairly questioned, 
 whether the distinction which now subsists in 
 courts of Common Law between deeds and agree- 
 ments, ought not to receive some modification. 
 The sealing of deeds, which was of so much use 
 when few people could write, is now of no use 
 at all ; and as the seals are almost invariably ap- 
 pended by the law stationers by whom deeds are 
 prepared, the use of them might well be supersed- 
 ed. With respect to the delivery of deeds, it seems 
 strange that the delivery of them in the presence of 
 witnesses by the party should be requisite, while 
 the signature of them by him is not necessary. 
 The signature of them by him in the presence of 
 witnesses is an act of greater formality, and 
 would rather increase than diminish the security 
 against surprise, if it were substituted in its stead. 
 If the sealing and delivery of deeds could with 
 safety be dispensed with, and signing in the pre- 
 sence of witnesses were introduced as a substitute, 
 two very desirable consequences would follow: 
 the law itself would become more simple, and that
 
 CIVIL LAW OF ENGLAND. 25 
 
 simplicity would give rise to fewer actions, ii* 
 consequence of non-compliance with its directions. 
 4. Another point in which the law of England is 
 still open to animadversion is the apparent severity 
 of the doctrines of attainder and corruption of blood. 
 The consequences of attainder for high treason are, 
 that the offender upon judgment being pronounced 
 forfeits for ever to the king all lands of inheritance 
 of which he is seised in his own' right, and all 
 rights of entry on lands in the hands of others, 
 the profits of all lands of which he was seised in 
 his own right or in right of his wife, and that 
 whether it be for years, for his own life, or the 
 lives of others. In petit-treason and felony, the 
 offender also formerly forfeited to the king, upon 
 judgment of death or outlawry being pronounced, 
 all his lands and tenements for a year and a day. 
 By the 54 Geo. 3. c. 145 the effects of attainder 
 with respect to real property are taken away, ex- 
 cept during the life of the attainted person, and 
 " except in case of treason, petit-treason or mur- 
 " der, or for abetting, procuring, or counselling the 
 " same." Personal estate and effects still become 
 wholly forfeited to the crown in high treason or 
 misprision of treason, petit- treason, all classes of 
 felonies, whether clergyable or not, petit larceny, 
 for refusing to plead by standing mute, and also 
 for fleeing from justice on an accusation of treason, 
 felony, and even in the case of petit larceny, if 
 the jury find the flight.* Upon judgment being 
 
 * Hawkins's Pleas of the Crown, iv. pp. 479)4-93. Blackstone's 
 Comment, p. 381. & seq.
 
 256 ON THE PRESENT STATE OF THE 
 
 pronounced in the cases excepted by 54 Geo. 3. 
 c. 145. corruption of blood immediately ensues; 
 the person convicted loses all nobility and genti- 
 lity ; and he can neither become an heir, nor can 
 any other become an heir to him.* 
 
 Though these laws respecting forfeiture and 
 corruption of blood are administered with extreme 
 mildness and forbearance, one cannot help wish- 
 ing that they were subjected to some still greater 
 alteration. They could not be endured if executed 
 with rigour, and the very moderation which is in- 
 variably exercised respecting them pleads power- 
 fully in favour of a further change. With the 
 exception of treason, it is difficult to conceive 
 upon what principle forfeiture can in any case be 
 justified. All the profit which forfeiture brings to 
 the Crown is neither considerable in amount nor 
 creditable in its nature. It is also peculiarly in- 
 appropriate as a punishment ; and now that the 
 amount of the personal property of the kingdom 
 has swelled to such an amount, the power which 
 it may give to the crown is liable to considerable 
 objection. If the eldest son of a wealthy family, 
 who had received a patrimony of one or two 
 hundred thousand pounds in the funds from his 
 father, should from his own evil disposition or 
 the influence of bad example, steal in a dwelling 
 house to the amount of forty shillings, is it re- 
 concileable to any notions of policy or justice re- 
 ceived among mankind, to maintain that his whole 
 
 * Hawkins, iv. p. 494.
 
 CIVIL LAW OF ENGLAND. 257 
 
 family and relations should be stript of this pro- 
 perty, and that the whole of it, in consequence of 
 this species of delinquency, should be confiscated 
 to the crown ? It has always been deemed one 
 of the most incontrovertible principles of criminal 
 law, that punishment should be confined invariably 
 to the guilty, and ought never to affect the inno- 
 cent. Treason is the only admitted exception. 
 Its expediency in that instance has been urged by 
 Mr. Yorke,* with all the learning and ingenuity 
 that can be brought to bear upon it, and the ground 
 upon which it rests, is summed up by Blackstone 
 with great perspicuity and ability. The natural 
 justice of forfeiture or confiscation of property and 
 corruption of blood for treason is alleged by him 
 to be founded on this consideration, " that he who 
 " hath thus violated the fundamental principles 
 " of government, and broken his part of the ori- 
 " ginal contract between the king and people, 
 " hath abandoned his connections with society, 
 " and hath no longer any right to those advan- 
 " tages which belonged to him purely as a mem- 
 " ber of the community : among which several 
 " advantages the right of transferring or trans- 
 " mitting property to others is one of the chief. 
 " Such forfeitures moreover, whereby his posterity 
 " must suffer as well as himself, will help to re- 
 " strain a man not only by the sense of his duty 
 " and dread of personal punishment, but also by 
 " his passions and natural affections; and will in- 
 
 * Considerations on the Law of Forfeiture. 
 
 s
 
 258 ON THE PRESENT STATE OF THE 
 
 " terest every dependent and relation he has to 
 " keep him from offending. According to that 
 " beautiful sentiment of Cicero, nee vero me fugit 
 " quam sit acerbum, parent um scelera fil'iorum pcenis 
 " lui: sed hoc preclare legibus comparatum esl, ut 
 " caritas liberorum amiciores parentes reipublicc? red- 
 " deret" He adds however, " Yet many nations 
 " have thought that this posthumous punishment 
 " savours of hardship to the innocent ; especially 
 " for crimes that do not strike at the very root 
 " and foundation of society ; as treason against 
 " the government expressly does."* That every 
 legislature possesses the abstract right to punish 
 traitors either by forfeiture, or corruption of blood, 
 or both, admits of no controversy. The expe- 
 diency of enforcing it is a much more difficult 
 question, and that must depend upon the dispo- 
 sition and opinions prevailing among the subjects 
 of each particular state, and the peculiarities of 
 its situation. Treason is a crime of which the 
 effects are so calamitous and extensive, that the 
 penal enactments against it ought doubtless to 
 be relaxed with much circumspection. But it 
 may justly be apprehended that the pains annexed 
 to it have hitherto partaken more of the nature 
 of savage unrelenting vengeance, than of firm and 
 considerate punishment, and that the present 
 opinions and condition of mankind cause them to 
 be regarded with increasing aversion. Upwards 
 of a century ago it was provided by an act of 
 
 * Blackstone's Com. iv. pp. 383 and 388.
 
 CIVIL LAW OF ENGLAND. 259 
 
 Anne,* that after the death of the Pretender and 
 his descendants, " no attainder for treason should 
 " extend to the disinheriting of any heir, nor to 
 " the prejudice of the right or title of any person 
 " or persons other than the right or title of the 
 " offender or offenders, during his, her, or their 
 " natural lives only; and that it shall and may be 
 " lawful to every person or persons to whom the 
 " right or interest of any lands, tenements, or 
 " hereditaments, after the death of any such of- 
 " fender or offenders should or might have apper- 
 " tained, if no such attainder had been, to enter 
 " into the same:" and it is to be regretted that it 
 should have been deemed necessary by the 39 
 Geo. III. c. 93, to repeal these merciful enact- 
 ments. If it should be thought safe to re-establish 
 the provisions of the act of Anne, a more favour- 
 able opportunity than the present could not occur 
 for their restoration. We are equally free from 
 foreign war and domestic disaffection, and the 
 whole body of the people are deeply and sin- 
 cerely attached to the sovereign and the govern- 
 ment. Whatever portion therefore of the penal 
 laws 'inferring forfeiture or corruption of blood 
 for the commission of public or private offences,! 
 should be now remitted, the relaxation could be 
 ascribed to no other motive than a disinterested 
 zeal on the part of the advisers of the crown, to 
 introduce every alleviation into the criminal code 
 
 * 7 Anne, c. 21, 10. t 2 Blackstoncs Com. 268. 277- 
 S 2
 
 260 ON THE PRESENT STATE OF THE 
 
 which can be done without endangering the con- 
 stitution and tranquillity of the country. 
 
 5. Closely connected with the doctrines respect- 
 ing forfeiture and corruption of blood, is the indis- 
 solubility of allegiance. With respect to the indis- 
 solubility of allegiance, Mr. Justice Foster says 
 that, " with regard to natural born subjects there 
 " can be no doubt. They owe allegiance to the 
 " Crown at all times and in all places. This is 
 " what we call natural allegiance, in contradis- 
 " tinction to that which is local. The duty of 
 " allegiance whether natural or local, is founded 
 " in the relation the person standeth in to the 
 " Crown, and in the privileges he deriveth from 
 " that relation. Local allegiance is founded in 
 " the protection a foreigner enjoyeth for his per- 
 " son, his family, or effects, during his residence 
 " here ; and it ceaseth whenever he withdraweth 
 " with his family and effects. Natural allegiance 
 " is founded in the relation every man standeth 
 " in to the Crown, considered as the head of that 
 " society whereof he is born a member, and in 
 " the peculiar privileges he deriveth from that 
 " relation, which are with great propriety called 
 " his birthright. This birthright, nothing but his 
 " own demerit can deprive him of. It is inde- 
 " feasible and perpetual ; and consequently the 
 " duty of allegiance which ariseth out of it, and 
 " is indispensibly connected with it, is in consi- 
 " deration of law likewise inalienable and per- 
 " petual. The merit of Dr. Story's case in point
 
 CIVIL LAW OF ENGLAND. 261 
 
 " of substantial justice, Dyer 298, turned singly 
 *' upon the doctrine of natural allegiance, and in 
 " a very modern case this doctrine was treated 
 " by the court as a point never yet disputed. 
 '* How far prudential considerations guided, or 
 " reasons of state, or even the principles of natural 
 <f equity may, under certain circumstances, induce 
 " the Crown to dispense with the rigorous exe- 
 *' cution of a law, extremely right and expedient, 
 " considered as a general rule, falleth not within 
 " the compass of my present inquiry. The doc- 
 *' trine of allegiance founded in birth, may, as I 
 " have said, be considered as a good general rule, 
 " though not universally true. Cases may be put 
 " which may be considered as exceptions to it, 
 " which I will not enter into at this time.''* I 
 believe at the time the passage now quoted was 
 written, the principle contained in it, was main- 
 tained by every state in Europe. The Code Na- 
 poleon first subjected it to an important modifi- 
 cation. It recognised the dissolution of the na- 
 tural allegiance which every person owes to the 
 sovereign authority under which he was born* in 
 the three following cases : where a natural born 
 subject becomes naturalised in a foreign country; 
 where he accepts office under a foreign govern- 
 ment without leave of the head of the government 
 of France; and by every sort of establishment by 
 which he fixes himself abroad without any inten- 
 tion of returning. The means are also pointed 
 
 * Foster's Crown Law, p. 183.
 
 262 ON THE PRESENT STATE OF THE 
 
 out by which the privileges of natural allegiance 
 may be recovered ; but it would appear that the 
 old Jaw which punished capitally every natural 
 born Frenchman who is seized bearing arms 
 against his country, has up to this time received 
 no mitigation.* With respect to bearing arms 
 against the country in which a person is born, the 
 greatest degree of indulgence yet known in Europe, 
 seems to have been introduced into Germany at 
 the late general peace. By the act relating to the 
 federative constitution of that country, acceded 
 to by almost all the great and small states of the 
 empire in 1815, permission is granted by the 
 second section of the 18th article, " d'entrer au 
 " service civil ou militaire de quelque etat confe 1 - 
 " de"re que ce soit, bien entendu cependant, que 
 " 1'exercice de 1'un ou de 1'autre de ces droits ne 
 " compromette 1'obligation au service militaire que 
 " leur impose leur ancienne patrie. Et pour qu'a 
 " cet gard la difference des loix sur 1'obligation 
 " au service militaire ne conduise pas a des rsul- 
 " tats inegaux et nuisibles a tel ou tel etat parti - 
 " culier, la diete de la Confederation deliberera 
 " sur les moyens d'6tablir une legislation autant 
 " que possible e*gale relativement a cet objet."'j' 
 The old international law has also undergone some 
 change in the United States of North America, 
 but of its nature and extent I am at present unin- 
 
 * Code Civil, 721. Code Penal, 75. 
 
 t De Martens, Supplement au llcceuil des piincipaux Traites, 
 torn. vi. pp. 366 and 3/8.
 
 CIVIL LAW OF ENGLAND. 
 
 formed. The whole course of events shows that 
 the doctrine of indefeasible allegiance, which 
 every man was supposed to owe to the sovereign 
 authority under which he was born, is either 
 shaken or subverted in every quarter of the globe. 
 That it may in some countries give way too fast 
 or too far, may be extremely possible; but the 
 more the subject is submitted to close and unre- 
 strained inquiry, the more apparent it will pro- 
 bably become, that the abstract ancient rule should 
 be accommodated to the present views and cir- 
 cumstances of society. Nor is there any reason 
 why it should not. The visionary and undefined 
 apprehensions, which princes and statesmen have 
 sometimes entertained of the consequences that 
 would follow, will be found, like many other ob- 
 jects of superstitious terror, to vanish upon close 
 examination. The farther the investigation is car- 
 ried, the more indisputably I believe it will ap- 
 pear, that its enforcement has brought no addition 
 to the prosperity or security either of king or go- 
 vernment, and that its abandonment will detract 
 from them as little. The establishment of freedom 
 of trade, freedom of conscience, and freedom of 
 emigration, all of which at the outset succes- 
 sively gave rise to dismal forebodings and anti- 
 cipations, have now been found as beneficial as 
 honourable to those countries where these inesti- 
 mable privileges have been bestowed, and there 
 seems no reason why the power of transferring al- 
 legiance from one state to another should not com- 
 plete our deliverance from unsocial restraint. It
 
 264 ON THE PRESENT STATE OF THE 
 
 is in vain for any state to try to make a prison of 
 its territory, or to extort from its forisfamiliated 
 offspring that submission which they are disin- 
 clined to yield. The same maxims which in 
 political economy apply to capital, apply in ju- 
 risprudence to the individuals who possess it. 
 They will never leave a country unless they have 
 good reason for doing so, and if such reason 
 exists no unkind or vindictive enactments will re- 
 tain or recall them. Allegiance ought not to be 
 dissolved either hastily or slightly, but if a person 
 voluntarily severs himself from the scenes and as- 
 sociations which bind him to the land of his nati- 
 vity, and plants himself in a foreign soil which he 
 henceforth makes the centre of his interests and 
 affections, it is difficult to conceive why the cir- 
 cumstance of his having happened first to draw 
 his breath in a particular spot should impose upon 
 him an obligation which neither lapse of time, nor 
 declaration of intention, can destroy. Not a 
 single individual has probably ever been deterred 
 from engaging in any hostile act or enterprise by 
 the punishment now denounced against breach of 
 allegiance, nor would one more be induced to en- 
 gage in them hereafter in consequence of their 
 modification. To fight against one's country is so 
 repugnant to our strongest feelings and opinions, 
 that, except in the case of deserters from the 
 naval or military service, whoever is guilty of it 
 might almost be left to that which is the most 
 severe and effectual of all inflictions, the con- 
 sciousness of his own baseness, and the universal
 
 CIVIL LAW OF ENGLAND. 265 
 
 abhorrence which is entertained of it by the rest 
 of mankind. If the doctrine of allegiance were a 
 question of curiosity merely, there would have 
 been no occasion to have said so much regarding 
 it. But it is one of our laws which cannot be 
 examined with too much solicitude, either in re- 
 gard to the reasons on which it is founded, or the 
 consequences to which it leads. Neither the 
 temper which every where prevails, the intelli- 
 gence which abounds, nor the commercial inter- 
 course which we carry on with all parts of the 
 world, will suffer us to carry it actually into exe- 
 cution ; and should any attempt at its enforcement 
 be hereafter made, we may find, when such a 
 crisis arrives, that we have advanced principles 
 which we can neither maintain without hazard, 
 nor abandon without dishonour. It is in order to 
 guard against the occurrence of such a dilemma, 
 that the law of allegiance has here been men- 
 tioned, and a seasonable relaxation might make it 
 more consonant to natural equity, more easy of 
 execution, and not less efficient for the preserva- 
 tion of our security, dignity, and independence. 
 
 6. The indissolubility of' marriage is perhaps as 
 much entitled to attention as the indissolubility of 
 allegiance. The Common Law of England de- 
 clares marriage to be indissoluble, while the legisla- 
 ture dissolves it by a private act of parliament in 
 every case where the adultery of one of the parties 
 and complete innocence of the other is satisfac- 
 rily established. Difficulty is sometimes expe- 
 rienced in obtaining an act at the instance of the 
 wife, but never at that of the husband. A dispen-
 
 266 ON THE PRESENT STATE OF THE 
 
 sation from the ecclesiastical law is by means of a 
 private act of parliament granted to every inno- 
 cent man who is furnished with three or four hun- 
 dred pounds to defray its charges. If this is not 
 the case, the conduct of the legislature must be 
 corrupt as well as unreasonable; for if it is capri- 
 cious in the dispensation of these private acts, and 
 refuses to one what it grants to another, such a 
 circumstance would only make this anomalous 
 jurisdiction so much the more exceptionable. 
 The law and the church are thus ranged on one 
 side, and the king and the two houses of parlia- 
 ment on the other ; the one constantly and 
 avowedly sanctioning a transaction which the 
 other religiously forbids. Can this be a state of 
 things which it is desirable upon any principle of 
 justice or expediency to continue ? So remark- 
 able a contradiction between law and usage is 
 almost unparalleled in the history of any country. 
 A law which is regularly suspended must soon 
 cease to have the sanction of a law at all, and 
 no encouragement ought to be given to a regu- 
 lation which is so partial and exclusive. If a 
 dispensation from the law can be obtained by 
 the higher classes of society, why ought it not 
 to be equally accessible to the lower ? A law 
 that is unequal must necessarily be unjust, and 
 one can hardly conceive how our present practice 
 can be rescued from such an accusation. Let it be 
 explained and palliated as it may, it remains ut- 
 terly indefensible either with respect to principle or 
 practice. The law which governs the contraction 
 and dissolution of marriage, is not one which is
 
 CIVIL LAW OF ENGLAND. 267 
 
 rarely called into operation, but exercises an in- 
 fluence the most extensive and important of all 
 others upon social life, and affects the charac- 
 ter and happiness of the lowest subject as deeply 
 as that of the highest. Why then should not 
 its provisions equally apply to all ? And what evil 
 would follow if some jurisdiction were created by 
 which marriage could be dissolved regularly and 
 absolutely with more facility? Like the objec- 
 tions urged against many other alterations, they 
 lose a great part of their force the instant they 
 come to be distinctly stated and examined. Upon 
 the wealthy it would have no effect at all, because 
 there is probably no instance of the expense of a 
 private act of parliament having precluded an opu- 
 lent individual from claiming that redress from 
 the House of Lords which a less expensive tribu- 
 nal would have accorded. Upon the lower ranks 
 of the community it would be equally little, unless 
 it happened that divorces would increase until 
 the frequency of them became alarming. But in 
 the first place, the allegation that this multiplica- 
 tion would ensue, is mere gratuitous assumption. 
 Such a contingency might be denied with the 
 same confidence with which it is asserted, and 
 with the same degree of reason. But even if 
 divorces should multiply, that effect would by 
 no means amount to conclusive evidence that the 
 alteration of the law was either detrimental to 
 private morals or the public good. Though ac- 
 tions on account of adultery were multiplied 
 twenty-fold, that would not prove that the crime
 
 268 ON THE PRESENT STATE OF THE 
 
 of adultery was increasing. The virtual exclusion 
 of such cases from courts of justice is no proof 
 either of their non-existence or infrequency. It 
 is not by such a test that we judge of the morality 
 of other countries, or that well-informed persons 
 in other countries will judge of ours. Let the 
 actual condition of the lower orders of society be 
 narrowly and extensively scrutinized, and it will 
 probably be found that of all those upon whom 
 the present law operates, that operation is to con- 
 firm the depravity of the greater number, and to 
 consummate the misery of all the rest. It holds 
 out no punishment to the first, and denies all con- 
 solation to the latter. Suppose a person of acute 
 feeling and exemplary conduct, though moving in 
 a humble walk of life, has the misfortune to have 
 contracted marriage with a consort who has sunk 
 into inveterate habits of irregularity or debauchery, 
 it is contrary to every principle of justice which is 
 engraven on the human heart, that all relief should 
 be unbendingly denied to him, while it is gra- 
 ciously extended to another whom fortune has 
 more highly favoured. Were the rich and the 
 poor occasionally made to change places, it would 
 then be seen with what selfishness, carelessness, 
 and ignorance the business of legislation has too 
 often been conducted. There can hardly be a 
 stronger instance of this than the law now under 
 consideration, as it seems liable to almost every 
 objection which can be stated to a public enact- 
 ment. It unnecessarily multiplies legal proceed- 
 ings by requiring one trial in the ecclesiastical
 
 CIVIL LAW Ofr ENGLAND. 2G9 
 
 court to obtain a divorce a mensd et thoro, and ano- 
 ther in the House of Lords before they pass the bill 
 for a divorce a v'mculo matrimonii: it in effect esta- 
 blishes two laws of marriage in the same country, 
 one for the rich and another for the poor : it re- 
 quires a new act for each particular case instead 
 of a general enactment for all : And it converts 
 one branch of the legislature into a court of mora- 
 lity, in cases where from the rank and fortune of 
 many of the parties who come before it, the acts 
 as well as wishes of many of its members cannot 
 fail to be swayed by personal and political feel- 
 ings, instead of being governed by the uncomply- 
 ing principles of justice. On all these grounds it 
 seems desirable that the law of England should 
 adopt more general and decided rules with respect 
 to divorce than it has yet done, as well as point 
 out a simpler method of procedure for obtaining 
 the benefit of their application. 
 
 7. The last imperfection which shall be alluded 
 to, consists in that departure which has too often 
 taken place in courts of Common Law, from the 
 strictness of established legal rules, as well as 
 from the letter of acts of parliament. So fully 
 aware was Justinian of the inconvenience of 
 judges deviating from the literal meaning of legis- 
 lative enactments, that he has prohibited this li- 
 cense in the strongest language. " Illud autem 
 " quod statim cum hanc compositionem legum 
 " congregare mandaremus, jussimus : iterum et 
 " nunc sancimus illud confirmando : omnibus si- 
 " militer interdicemus, ne quis audeat hominum
 
 270 ON THE PRESENT STATE OF THE 
 
 " qui sunt nunc aut in posterum erunt, com men- 
 " tarios scribere harum legum, prseterquam si velit 
 " quis in Graecam linguam haec transferre, quern 
 " etiam volumus sola secundum pedem, seu xxra. 
 " vo$oi nuncupata uti legum interpretatione : et si 
 " quid secundum nominatorum paratitlorum adscri- 
 " here voluerint usum : aliud autem nihil omnino, 
 " ne tantillum quidem circa ea facere, nee rursum 
 " dare seditionis et dubitationis aut infinitae multi- 
 " tudinis legum occasionem. Si quid enim forte 
 " ambiguum fuerit visum vel litium certatoribus 
 " vel his qui rebus judicandis praesunt, hoc Impe- 
 " rator interpretabitur recte : nam haec facultas 
 " illi soli legibus permissa est."* This power 
 has, however, been more or less exerted, under 
 every system of judicature, and has been largely 
 assumed in the Common Law of England, where 
 it could least of all have been expected to find 
 a footing. The judges avowedly hold that 
 private acts of parliament may be overruled by 
 usage,f and the provisions of public acts have also 
 been dispensed with,J disregarded,!! an d evaded. 
 In some cases, as in the limitation of actions for 
 simple contract debts, they have superseded 
 some acts of parliament entirely, and rendered 
 an important provision of the legislature almost 
 
 * Prasfat. Digest, ed. Gothafred, p. 62. 
 t 2 Brown's Pad. Cases, 492. 
 \ Carthew, 283. 
 
 || Phillips on Evidence, p. 530, and Cases. 
 The King v. Shackell in the Court of Exchequer in 1823, 
 not yet reported.
 
 CIVIL LAW OF ENGLAND. 271 
 
 wholly nugatory.* Notwithstanding the implicit 
 deference which all judges profess to yield to 
 authority, some of the best ascertained maxims of 
 common law have in the same manner been modi- 
 fied, abandoned, and exploded. | The cases in 
 which this has happened are scattered over the 
 whole surface of the law, and create a degree of 
 doubt and uncertainty which never could have 
 arisen, if those who preside in the Common Law 
 courts had rigorously adhered to antecedent au- 
 thorities, legislative or judicial. 
 
 That jurisdiction which courts of Common Law 
 have arrogated, in controuling, superseding, or 
 evading legal doctrines and acts of parliament, is 
 equally unwarranted in principle and inconvenient 
 in practice. Known and received doctrines, whe- 
 the,r expedient or inexpedient, are as much a part 
 of the law of the land as acts of parliament them- 
 selves, and as long as it is part of the law of the 
 land that acts of parliament can never go into de- 
 suetude, so long are Common Law judges bound 
 to carry them into full effect, according to their 
 plain and genuine signification. If the enforce- 
 ment of these acts or doctrines counteracts or 
 impedes the ends of justice, those who feel 
 aggrieved ought to betake themselves to courts 
 of equity, or the law itself ought to be corrected 
 by the legislature. But with such considerations 
 
 * 4 East's Reports, 599 and 604. Ib. v. xvi. p. 420. 5 Maulc 
 and Selwyn's Reports, 75. 3 Barnwell and Alderson's Reports, 
 141. 
 
 t 1 Salkeld's Reports, 122, and Cases there quoted.
 
 272 ON THE PRESENT STATE OF THE 
 
 Common Law judges have no concern. Their 
 province is to expound the law, not construct it. 
 While they scrupulously adhere to this prescribed 
 line of duty, they never can be far mistaken ; but 
 the smallest deviation from it necessarily allows 
 every judge to determine for himself the extent to 
 which that deviation may be carried. In this way 
 they advance step by step, until their error be- 
 comes manifest both to themselves and others. 
 From this point, therefore, they take the first op- 
 portunity to recede, and their retreat usually con- 
 tinues, until they resume the precise position from 
 which they originally started. A variety of im- 
 portant doctrines are thus subjected to perpe- 
 tual ebbs and flows, which are the source of most 
 of those inconsistencies and anomalies which it 
 would be so desirable to rectify at present <md 
 prevent in future. 
 
 SECTION VII. 
 
 On the Doctrines of Courts of Equity. 
 
 FEW facts are now on record respecting the 
 origin and progress of Courts of Equity, and a 
 detail of those which remain, would in this place 
 neither be deemed interesting nor appropriate. 
 It seems sufficient to mention, that by far the 
 largest portion of their jurisdiction, however 
 strengthened by time and consecrated by utility,
 
 CIVIL LAW OF ENGLAND. 273 
 
 rests upon no other foundation than the power 
 which the distinguished persons who have suc- 
 cessively been placed at. their head, have admi- 
 nistered according to the best of their judgment, 
 and under the responsibility attaching to their 
 exalted office. Almost all tribunals will be found 
 more or less to have enlarged their own jurisdic- 
 tions, but it is believed none are to be found who 
 have pushed this amplification so far as courts of 
 Equity in this country. When we are told that 
 our present system of equity was begun by Lord 
 Nottingham and completed by Lord Hardwicke, 
 the inference which plainly and unavoidably arises 
 is, that they together with the Lord Chancellors 
 who filled up the space between them, ought to be 
 ranked among the greatest legislators that have 
 ever lived in England. The origin of the system, 
 taking into consideration the circumstances under 
 which it took place, is neither dishonourable to 
 them nor to it. Still it is desirable that this origin 
 should not be forgotten, as it is difficult to perceive 
 why the same power which built it up at first, 
 should not be permitted under prudent limitations 
 to correct and enlarge it afterwards. Lord Hard- 
 wicke says, " The tribunals of this kingdom are 
 " wisely formed both of courts of law and equity, 
 " and so are the tribunals of most other nations ; 
 " and for this reason there can be no injury but 
 " there must be a remedy in all or some of them ; 
 " and therefore I will never determine that frauds 
 " of this kind are out of the reach of courts of law 
 " or equity, for an intolerable grievance would 
 
 T
 
 274 ON THE PRESENT STATE OF THE 
 
 i 
 
 " follow from such a determination."* A principle 
 of this sort, governed by such occasional, general, 
 or particular instructions, as the legislature may 
 think fit to issue, seems indispensible to the pro- 
 sperity of courts of Equity when disjoined from 
 courts of Common Law, and ought to be extended 
 to the relief of every class of wrongs which spring 
 up in the country in which they are established. 
 The jurisdiction of courts of Equity at the esta- 
 blishment of the Chancellor's Equitable Court in 
 the time of Richard II. was probably extremely 
 circumscribed. Lands and the produce of them 
 then constituted almost the only species of wealth; 
 the actions which arose respecting them, though 
 often of extreme nicety, usually turned on a few 
 isolated points ; and to the determination of these 
 the courts of Common Law were fully competent. 
 The subjects which then came properly under the 
 cognizance of courts of Equity extended at first 
 probably only to cases of fraud, and subsequently 
 to trusts, when trusts under the denomination of 
 wes grew common. As riches increased, and the 
 rights, interests, and transactions of individuals 
 became numerous and interwoven, the difficulty 
 which was experienced in trying in the courts of 
 Common Law the disputes which grew out of 
 them, gradually led the suitors more and more to 
 courts of equity, in which tribunals almost all 
 questions relating to property of large amount are 
 now ultimately determined. 
 
 * 2 Atkins' Rep. 406.
 
 CIVIL LAW OF ENGLAND. 
 
 Constituted as courts of Equity and Common 
 Law have long been, this is the natural course of 
 events, and it would not be wise to conteract it. 
 Courts of Common Law were not intended, and 
 are not calculated for the dispatch of that species 
 of business with which courts of Equity are con- 
 versant. They could neither arrange the parties, 
 balance their interests, protect and manage pro- 
 perty, frame decrees, order references and inqui- 
 ries before decrees are drawn up, nor hear causes 
 upon further directions afterwards. They are 
 utterly destitute of the machinery requisite for 
 such a purpose, and could not easily be provided 
 with it. It is for this reason that a bill for an ac- 
 count is brought in courts of Equity instead of an 
 action of account raised at Common Law : that a 
 bill is also brought in Equity for the recovery of 
 any particular thing instead of an action of detinue 
 at Common Law : that legacies are always sought 
 to be recovered in Equity though courts of Com- 
 mon Law have a concurrent jurisdiction : and that 
 courts of Common Law never make a decree for 
 the specific thing contracted for, but for such a sum 
 as may be an indemnification for the non-perform- 
 ance of the contract. In this last instance courts 
 of Common Law and Equity have completely 
 changed places. Natural justice requires that 
 the law should give to a suitor the identical 
 thing he has contracted for, and if this should 
 be productive of extraordinary hardship, the de- 
 fendant should then ask a court of Equity to 
 relieve him from the obligation where it may be 
 
 T2
 
 276 ON THE PRESENT STATE OF THE 
 
 thought equitable, upon payment of a compen- 
 sation. The inversion of this order may have 
 been in some degree accidental at the outset; 
 but convenience has continued it, and would not 
 now permit an alteration. In the cases here spe- 
 cified, the inability of courts of Common Law to 
 administer substantial justice, either from want of 
 original jurisdiction or the nature of their consti- 
 tution, force the suitors to apply elsewhere for an 
 effectual remedy. They usually betake themselves 
 to courts of Equity, which are forced to discharge 
 the duties thus devolving upon them, conformably 
 to the doctrines which antecedent practice and 
 decisions have established. Most of these doc- 
 trines essentially considered are commendable. 
 The expense and delay which are incurred before 
 the benefit of them can be obtained, may be both 
 unnecessary and excessive; but the doctrines them- 
 selves will, when closely examined, be found in the 
 main to be just and laudable. While the general 
 tenor of the doctrines of Equity fully merit this ac- 
 knowledgment, it cannot on the i other hand be 
 denied that to the general rule there are a consi- 
 derable number of exceptions. The maxims by 
 which the judges who framed the doctrines of 
 Equity have been governed, have not always 
 been either clear, comprehensive, or consistent. 
 Overborne on some occasions by their desire to 
 do justice in an individual instance, and hesitating 
 on others either about the extent of their jurisdic- 
 tion or the consequences of its exercise, the ge- 
 neral stream of their decisions shews alternate
 
 CIVIL LAW OF ENGLAND. 277 
 
 errors both on the side of boldness and timidity. 
 As the mistakes which spring from timidity would 
 perhaps be better corrected by remedial or decla- 
 ratory acts, similar to those which shall be after- 
 wards mentioned, than by an unseasonable re- 
 sumption of antiquated authority, those which are 
 now about to be mentioned, shall be confined to 
 those instances where it may be doubted whether 
 the jurisdiction which courts of Equity have pre- 
 cipitately assumed might not be advantageously 
 abrogated or surrendered. They appear to have 
 arisen chiefly in three cases : in the case of fa- 
 voured classes of persons ; in relieving against 
 apparently oppressive legal rights; and in the 
 evasion of beneficial statutes. 
 
 1. The classes of persons to whom favour is 
 principally shewn, are infants^ expectant heirs, and 
 charities. The privileges given to infants in courts 
 of Equity are both numerous and material. If a 
 bill is filed to which it is necessary to make an 
 infant a defendant, the infant is not obliged to 
 put in an answer himself till the expiry of his in- 
 fancy; and no exception can be taken to the an- 
 swer, however manifestly erroneous or defective, 
 which is put in during his infancy by his guardian 
 or next friend on his behalf. If an infant is a 
 plaintiff in a bill, he is as much bound by the de- 
 cree as if he were of full age ;* but no decree can 
 be made against an infant if he happens to be a 
 defendant, to which he has not the power of ob- 
 
 * Atkins's Rep. 531.
 
 278 ON THE PRESENT STATE OF THE 
 
 jecting afyer the termination of his infancy.* The 
 court acts for the benefit of an infant without re- 
 gard to the prayer of a petition, which it does in 
 the case of no other person, t If he is a mort- 
 gagor, the foreclosure is not complete till he 
 attains twenty-one ; J and in the case of the exe- 
 cution of deeds, as for a partition of lands, the 
 conveyances cannot be executed till he comes to 
 the age of discretion. If lands are devised by 
 will for payment of the testator's debts, and it 
 should happen that the person to whom the resi- 
 due is devised is an infant: or if a creditor by 
 bond institutes a suit for the purpose of having 
 the bond paid out of the real estate of the debtor; 
 in both these cases, if " the parol demurs," that 
 is, if the infant thinks proper through advice or 
 spontaneously to avail himself of his privilege of 
 infancy, the estate cannot be sold till the infancy 
 determines, though that should be ten or fifteen 
 years afterwards. || All these cases occasion more 
 or less inconvenience, and to legatees and cre- 
 ditors are often productive of the severest hard- 
 ship. The protection and redress of infants is 
 certainly one of the most sacred duties which the 
 chancellor and other equitable judges who re- 
 present the parens patria in his courts of Equity, 
 
 * 2 Maddocks'Eq. 460. 
 t 10 Ves. 59. 
 J 18 Ves. 83. 
 
 2 P. Williams's Rep. 518. 
 
 || 7 Ves. 211. 2 Cox's Rep. 386. 2 Atkyns's Rep. 531. 
 3 P. Williams, 368.
 
 CIVIL LAW OF ENGLAND. 279 
 
 are required to perform; but it is not unworthy of 
 consideration whether the privileges which infants 
 now enjoy might not be circumscribed with great 
 advantage to themselves and all other members of 
 the community. 
 
 Heirs form another class of persons whom courts 
 of Equity regard with peculiar favour. Though a 
 will has been executed, which there is every rea- 
 son to believe is perfectly valid, depriving a re- 
 mote heir of an estate, and disposing of it among 
 the testator's near relatives and connections ; yet 
 if the heir has by any contrivance got into pos- 
 session of the estate, although the legatees should 
 immediately file a bill and proceed to establish 
 the will, however questionable the title of the 
 heir seems here to be, the court will take no step 
 either to recover the possession or protect the 
 property. The heir has the uncontrouled ma- 
 nagement of it, and though he remains personally 
 liable for his actions, he may cut down timber, or 
 commit any other act of waste, without restraint, 
 until the title is determined.* In the case of ex- 
 pectant heirs, this favour is still more unequivocally 
 demonstrated. In all disputes arising between ex- 
 pectant heirs and those who have dealt with them 
 for interests of which they were not in actual 
 possession, the expectant heir is not required to 
 shew that the bargain was unconscionable, but 
 those who dealt with him are bound to shew its 
 reasonableness ; and unless this be done, the ex- 
 pectant heir is relieved from the performance of 
 
 * 8 Vcs. p. 89.
 
 280 ON THE PRESENT STATE OF THE 
 
 the contract. This is the established rule by 
 which courts of Equity are guided, and it extends 
 to all expectant heirs without respect to age, ca- 
 pacity, or experience; and to agreements of every 
 description by which a future interest is exchanged 
 for a present benefit.* The principle upon which 
 courts of Equity proceed in these cases is, that 
 the necessities of the expectant heir compelled 
 him to enter into agreements, of which it would 
 be contrary to good conscience to allow the per- 
 son who dealt with him to take advantage. How- 
 ever amiable the love of justice always is, it is here 
 deplorably misdirected. Had the earlier Equity 
 judges possessed the prescience and comprehen- 
 sive views of their successors, such a principle 
 never would have been promulgated.f It is un- 
 sound in itself, detrimental to the very objects of 
 its intended kindness, and if it were pushed to its 
 utmost legitimate limits, would bring one half of 
 the transactions in the country into question. 
 The period of full age might be postponed to a 
 later period in life, or all dealings for future inte- 
 rests might without exception be declared void, 
 provided either of these alterations should be reck- 
 oned salutary; but the moment an expectant heir 
 is permitted to have the complete management of 
 his own affairs, he has no more right to be pro- 
 tected in his dealings with other persons, than 
 other persons have to be in their dealings with 
 
 * Haddocks' Equity, v. i. p. 117 123. 2 Swanston's Rep. 
 139, and Cases, 
 t 2 Brown's Rep. 179. 2 Swanston's Rep. 139.
 
 CIVIL LAW OF ENGLAND. 28l 
 
 him. If fraud or surprise has been practised, that 
 circumstance furnishes a separate and sufficient 
 ground of relief, but neither he because he is an 
 heir expectant, nor other heirs because they sus- 
 tain the character of heirs at law, seem to be en- 
 titled to *any privileges or immunities which do 
 not belong to other parties who are forced into a 
 court of justice.; 
 
 Charities are also favoured in Equity, both in 
 their establishment at first, and in the proceed- 
 ings instituted on their behalf afterwards. It 
 may be doubted in the first place, whether equity 
 is not too much disposed to give effect to chari- 
 table purposes though expressed in an extremely 
 loose and indefinite manner.* If the inten- 
 tion is ascertained to be charitable, it is carried 
 into execution, though the mode of carrying it 
 into execution which has been expressed by the 
 testator is either impracticable or illegal. " If 
 the mode becomes impossible, the general ob- 
 " ject, if attainable, shall not be defeated."! " If 
 " it were res integra" Lord Chief Justice Wil- 
 mot has said, " much might be said for the heir 
 " at law; because in every other case, if the 
 " testator's intention in specie cannot take place, 
 " the heir at law takes the estate. And as 
 " the motive inducing the disinherison in a cha- 
 " ritable devise, is a passion for that particular 
 " charity which he has named, if that par- 
 ticular charity cannot take place. Cessante 
 
 * See Cases, 2 Maddocks' Equity, p. 71 and 72. 
 i Vescy's Rep. 144.
 
 282 
 
 dy cessaret effectus. The right of the heir at 
 " law seems to arise as naturally in this case as 
 v * in any other. But instead of favouring him, as 
 " in all other cases, the testator is made to dis- 
 " inherit him for a charity he never thought of; 
 " perhaps for a charity repugnant to the testator's 
 " intention, and which directly opposes and en- 
 " counters the charity he meant to establish. 
 " But this doctrine is now so fully settled, that it 
 " cannot be dissented from."* At one time this 
 doctrine of cy pres or approximation was carried 
 to an extent both ludicrous and alarming. Ro- 
 bert Mayot, a beneficed clergyman of the church 
 of England, bequeathed GOO/. to be distributed 
 by Mr. Baxter " amongst sixty pious ejected 
 " ministers ;" and adds, " I would not have 
 " my charity misunderstood. I do not give it 
 " them for the sake of their non-conformity, but 
 " because I know many of them to be pious and 
 " good men, and in great want." The charity 
 was adjudged void, and the money decreed for 
 the maintenance of a chaplain for Chelsea Col- 
 lege.! I n another case a Jew set apart a fund of 
 1200/. and desired the revenue of that sum to be 
 applied towards the establishment of a Jesuba, or 
 assembly for reading the law, " and instructing 
 " people in our holy religion." The King and the 
 court of Chancery between them, disposed of it 
 for the benefit of the Foundling Hospital, an in- 
 
 * Wilmot's Judgments and Opinions, p. 32. 
 f 1 V ergon's Rep. 247.
 
 CIVIL LAW OF ENGLAND. 283 
 
 stitution which may be extremely useful in its 
 way, but bearing as little resemblance to a 
 Jesuba as can be well imagined.* In times 
 comparatively recent, Lord Rosslyn mentions 
 another which occurred in his own experience. 
 He says, " In a case before me, the testator 
 " directed bread to be distributed to four per- 
 " sons attending divine service, and chaunting 
 " his version of the psalms. They could not be 
 " chaunted, because not authorised; but I thought 
 " his general object was to give the poor people 
 " the bread, and the chaunting the psalms was 
 " only accessory, because he thought his version 
 " as good as any other."t The special facts which 
 were adduced in evidence may possibly have jus- 
 tified his Lordship's judgment; but as far as he 
 has here thought proper to detail them, no case 
 could well be conceived in which the opinions 
 of the poet and the poor people about principal 
 and accessory were likely to be more at variance. 
 The disposition of the present judges certainly 
 is rather to confine than enlarge the operation 
 of this doctrine; but it may be doubted whether 
 its limits have yet been sufficiently restricted. 
 Besides being indulged in their constitution, cha- 
 rities are favoured in almost every state of the 
 suits which are instituted in courts of Equity 
 where they are concerned. They are favoured 
 with respect to defects in the prayer of the bill, 
 defects with respect to parties, and irregularity 
 
 * Ambler's Rep. 228. t 2 Vesey, jun. 388.
 
 284 ON THE PRESENT STATE OF THE 
 
 with respect to the decree and general proceed- 
 ings.* One does not readily perceive why all 
 these instances of kindness should be shewn to 
 them which are denied to other parties. Indeed 
 the whole subject of charities well deserves in- 
 vestigation, both as it concerns the public, the 
 heir or next of kin, and the reasonableness and 
 consistency of the rules according to which this 
 branch of the jurisdiction of Equity is adminis- 
 tered. 
 
 2. Another point in which courts of Equity 
 have incautiously overstepped their proper limits, 
 is by depriving parties of legal rights, or reliev- 
 ing them against the effect of legal obligations. 
 One of the most frequent cases in which this oc- 
 curs, is by giving time for the performance of a con- 
 tract, or the payment of money into court. Lord 
 Rosslyn says, " The court had been for some time 
 " very large upon this, and there was one case 
 " before Lord Thurlow from which my opinion 
 " revolts ; but in Whittaker ?;. Whittaker it ap- 
 " pears that Lord Kenyon, upon the bill of the 
 '* vendor, either to have the contract completed, 
 '* or to be relieved from it, recalled the true rule, 
 " holding that the vendor was not to wait the ar- 
 " rangement of the testator's affairs, and direct- 
 " ing the contract to be delivered up."f There is 
 sound justice in the alteration of the rule, which 
 still remains susceptible of improvement. Delay 
 is always inconvenient, generally injurious, and 
 
 * 11 Vcsey's Rep. 217, 366. f 5 Vescy, 736.
 
 CTVIL LAWt)F ENGLAND. 
 
 sometimes fatal to one or other of the complaining 
 parties. Compassion and their own interest al- 
 most always prompt suitors to exercise sufficient 
 forbearance and indulgence to one another, and 
 the less courts of Equity interfere in private ar- 
 rangements of this nature, the public interest will 
 be the more effectually consulted. They seldom 
 have it in their power to do more than shift the 
 grievance, and generally end in leaving it upon 
 the shoulders of the wrong party. A second in- 
 stance in which courts of Equity have exceeded 
 their powers, is in restraining the Common Law 
 rights of tenants in tail without impeachment of 
 waste. The court foresaw the evil, and yet un- 
 fortunately did not guard against it. Near eighty 
 years ago it was observed by Lord Hardwicke, 
 " That if a son should have it in his power 
 " to call his father into a court of Equity for 
 " every alteration he makes in a walk or an 
 " avenue, it would be such a fund of dispute be- 
 " tween them that there would be no end of it, 
 " and it would be better for the public that Raby 
 " Castle had been pulled down than that the pre- 
 " cedent had been made."* Were Lord Hard- 
 wicke now living he would see that the Court had 
 involved itself in the very difficulties he had de- 
 precated. There is no end of the questions which 
 arise about ornamental timber, husbandlike manage- 
 ment, and wilful, destructive, malicious and extrava- 
 gant waste, nor is it possible to discover any 
 
 * 1 Vescy, 522.
 
 286 ON THE PRESENT STATE OF THE 
 
 rational and determinate rules by which they 
 ought to be decided. Lord Eldon has declared, 
 " When this court took upon itself to depart from 
 " the rule of law as to waste, and interpose its 
 " restraining power upon what is called equitable 
 " waste, one duty at least was imposed upon it : 
 " to define with precision and accuracy in what 
 " cases the court would interpose, and to take 
 " great care that in the terms of its injunctions a 
 " language should be adopted, that might be 
 " clearly understood by the parties, whose rights 
 " were to be bound at such peril as that of diso- 
 " beying an injunction of this court. But the court 
 " has at all times adopted language exceedingly 
 " difficult to be understood. In arguing cases 
 " of this sort I have been asked from this place 
 *' what I meant by thriving timber, timber-like trees, 
 " and ornamental timber, and I have not been able 
 " to give any further answer than by referring to 
 " the language of the court in former instances."* 
 No argument could exhibit the principles of the 
 court on this subject in a more unfavourable point 
 of view, or more clearly demonstrate that they 
 stand in need of remedy. 
 
 Another point in which courts of Equity have 
 exceeded their proper jurisdiction, is by inter- 
 fering too much with those rights technically 
 termed powers, which are so frequently acquired 
 or reserved by some of the parties to a deed 
 
 * 6 Vesey's Rep. 10p. 4 Vescy, 785. 5 Vcscy, 367- See 
 cases collected 1 Haddocks' Eq. 313.
 
 CIVIL LAW OF ENGLAND. 287 
 
 or agreement upon its execution. Courts of 
 Equity have aided the dej'ective execution of these 
 powers, and controuled their exercise in cases 
 where appointments made under them appeared 
 to be illusory, much farther than a sound view of 
 equitable interference will be found to warrant. 
 Upon the defective execution of powers Sir Wil- 
 liam Grant has delivered the following opinion. 
 " It is difficult, therefore, to discover a sound prin- 
 <( ciple for the authority this court assumes for 
 " aiding a defective power in certain cases. If 
 " the intention of the party possessing the power 
 " is to be regarded, and not the interest of the 
 " party to be affected by the execution, that in- 
 " tendon ought to be executed whenever it is 
 " manifested ; for the owner of the estate has no- 
 " thing to do with the purpose. To him it is in- 
 " different whether it is to be exercised for a cre- 
 " ditor or a volunteer. But if the interest of the 
 " party to be affected by the execution is to be 
 " regarded, why in any case exercise the power, 
 " except in the form and manner prescribed ? He 
 " is an absolute stranger to the equity between 
 " the possession of the power, and the party in 
 " whose favour it is intended to be executed. As 
 " against the debtor it is right that he should pay. 
 " But what equity is there for the creditor raised 
 " out of the estate of a third person, in a case in 
 " which it was never agreed that it should be 
 " raised ? The owner is not heard to say, it will 
 " be a grievous burden, and of no merit or utility. 
 " He is told the case provided for exists : it is for-
 
 288 ON THE PRESENT STATE OF THE 
 
 " mally right : he has nothing to do with the pur- 
 " pose. But upon a defect, which this court is 
 " called upon to supply, he is not permitted to 
 " retort this argument, and to say it is not formally 
 " right ; the case provided for does not exist, and 
 " he has nothing to do with the purpose. In the 
 " sort of Equity upon this subject there is some 
 " want of equality ; but the rule is perfectly set- 
 " tied; and though perhaps with some violation of 
 " principle, with no practical inconvenience."* 
 Though there may be no inconvenience here, it is 
 seen very perceptibly in other instances. As it is 
 not all defective executions of powers that are 
 aided, but only those to the execution of which 
 the person who has inaptly executed the power is 
 bound by valuable consideration, the difficulty of 
 determining whether a consideration ought to be 
 held valuable, will here be found to recur. It is 
 impossible to divine why some sorts of what are 
 in Equity termed valuable considerations, and parti- 
 cularly that of natural affection, is made to extend 
 so far, or why it should not have been extended 
 a great deal farther. It does not extend to a wife 
 in favour of her husband, nor to a natural child, nor 
 grandchild, nor brother nor sister, nephew nor 
 cousin.| The difficuly of settling either the grounds 
 or limits of equitable interposition in these cases 
 becomes still more obvious, in cases where a pa- 
 
 * 7 Vescy's Rep. 506. 15 Vescy, 51. 
 
 t 1 Mad. Rep. 516. 3 Ves. 244. Pre. Ch. 475. 5 Ves. 567. 
 6 Ves. 544. 1 Ves. 228. 3 Atk'. 189. 2 Ves. 6'21. 3 Br. 170. 
 2 Ves. 582.
 
 CIVIL LAW OF ENGLAND. 289 
 
 rent or other person has a power of dividing a 
 sum of money among his children. Courts of 
 Equity then arrogate the power of preventing the 
 parent from excessive irregularity in the distribu- 
 tion, and of depriving any of the children of what 
 might be thought their due, by giving them a 
 share which is merely illusory. Sir William Grant 
 has unequivocally expressed his dissatisfaction 
 with this stretch of jurisdiction. " It is impossi- 
 " ble to have considered a case of this kind with a 
 *' view to its decision, without wishing, that judges 
 " in Equity had either never assumed control over 
 " the execution of discretionary powers, or had 
 " laid down rules by which their successors 
 " might be guided in the exercise of that jurisdic- 
 " tion. To say that under such a power an illu- 
 " sory share must not be given, or that a substan- 
 " tial share must be given, is rather to raise a 
 " question than to establish a rule. What is an 
 " illusory share, and what is a substantial share ? 
 " Is it to be judged of upon a mere statement of 
 " the sum given, without reference to the amount 
 " of the fortune, which is the subject of the power? 
 " If so, what is the sum that must be given, to 
 " exclude the inference of the court ? What is the 
 " limit of amount at which it ceases to be illusory 
 " and begins to be substantial ? If it is to be con- 
 " sidered with reference to the amount of the for- 
 " tune, what is the proportion, either of the whole, 
 " or of the share; that would belong to each upon 
 " an equal division ? In terms, the power, though 
 " limited as to objects, is discretionary as to 
 
 u
 
 290 ON THE PRESENT STATE OF THE 
 
 " shares. A court of law says, no object can be 
 " excluded : but there it stops. It does not at- 
 " tempt to correct any, the extremest inequality 
 " in the distribution ; and yet if that is a fraudu- 
 " lent execution of the power, why is it not void 
 " at law ? a fraudulent act has no more validity 
 " in a court of Law than in a court of Equity ; and 
 " if it is not a fraudulent execution, upon what 
 " principle does a court of Equity deny its effect? 
 " It is sometimes said this court interferes for the 
 " purpose of carrying into effect the intention of 
 " the party creating the power, who must have 
 " meant that each object should derive the same 
 " real benefit from the execution of the power. 
 " Now every instrument must receive the same 
 " construction from every court. Whatever is its 
 " true meaning must be its meaning every where. 
 " If then the true meaning of the power, however 
 " discretionary it seems, be, that each object shall 
 " have what is called a substantial share, it is not 
 " executed according to its true meaning, and 
 " therefore is not well executed by an appointment 
 " that does not give to each object a substantial 
 " share. A court of Equity may in the exercise 
 " of its own particular jurisdiction supply defects 
 " in the execution of a power. But I cannot un- 
 " derstand how the question, whether a power is 
 " well or ill executed, can receive different deter- 
 '' minations in different courts. If it is not exe- 
 " cuted according to its true import how can 
 " a court of Law say it is well executed ; and if 
 " it is executed according to its true import,
 
 CIVIL LAW OF ENGLAND. 291 
 
 " how can a court of Equity say it is ill exe- 
 " cuted ?" He afterwards concludes the judg- 
 ment thus, " So in reality the court keeps itself 
 " in a state of constant embarrassment, and those 
 " who have such powers to execute in perpetual 
 " uncertainty, without aiming at any object of the 
 " least importance. If the thing to be secured 
 " was a sufficient provision for every object of 
 " the power, then the attention of the Court 
 " would be directed to a substantial object. But 
 " as it is, the interference of the court is only to 
 " determine whether a few pounds more or less 
 " shall leave it within, or take it out of the rule. 
 " If I determine that this is illusory, the next 
 " person having such a power to execute, will 
 " add a few pounds, and make the experiment 
 " upon another sum. How far is the court to go ? 
 " Is it to go from sum to sum, and from step to 
 " step, till at last it gets up to what is an adequate 
 " provision? If so, it is infinitely better for the 
 " court to avow that object, that parties may 
 " know how to execute powers. With this opi- 
 " nion of the rule, it is impossible not to feel the 
 " disposition of Lord Alvanley to get rid of it 
 " altogether. But I am not authorised to act 
 " upon that disposition. I am bound to follow 
 " the precedents as far as they have gone. But 
 " having no principle to guide me, I cannot go a 
 " step further."* 
 
 * 9 Vesey's Rep. p. 3p3. 
 u 2
 
 2U2 ON THE PRESENT STATE OF THE 
 
 It is also disputable whether courts of Equity 
 have not also indulged judicial discretion too 
 much in the suits which have occurred respecting, 
 the powers of granting leases which are enjoyed 
 by the tenants for life of entailed estates. On this 
 subject it may be sufficient to allude to the two 
 recent cases of the Jersey and Queensberry leases,, 
 as the whole doctrines on the subject have there 
 been laboriously discussed and collected.* The 
 first of these was an appeal from a Common Law 
 court to the House of Lords. And as the twelve 
 Common Law Judges were equally divided on the 
 first occasion on which they were called in to 
 assist the House of Lords with their opinion, and 
 only one of them changed his view of the point 
 on the second, it may almost be assumed, upon 
 looking at the reasons given for the final judgment, 
 that the Chancellor alone reversed a Common 
 Law judgment upon Equitable grounds, and that 
 too in a case where courts of Equity could have 
 afforded relief, provided the party had proved 
 himself entitled to it.f By the judgment in the 
 Queensberry leases, the interference of Equity with 
 the strict legal rights of tenant for life, was first 
 established or renewed in another country. Both 
 decisions are likely to remain the subject of inter- 
 minable doubts and discussions. With regard to 
 the whole subject of powers, courts of Equity 
 
 * 10 Vcscy's Rep. 68. 
 
 f 1 Taunton and Broderip's Rep. p. 97. and 5 Dow's Rep. 
 p. 297. and 1 Bligh's Rep. 339. Sugden on Powers, p. 6lO. ad 
 finem.
 
 CIVIL LAW OF ENGLAND. 293 
 
 ought to interfere with them with extreme reluc- 
 tance. If any description of powers are either con- 
 fined too much or too little, let them be enlarged 
 or contracted ; but as long as they remain un- 
 changed, it will eventually prove most expedient 
 for courts of Equity to permit every individual 
 who is entrusted with them to exercise them at 
 his own time and in his own way. 
 
 Courts of Equity have been equally unsuccessful 
 in interfering with the right of executors to the un- 
 disposed residue of a testator's estate, which the 
 Common Law gives them. The anxiety of courts 
 of Equity to effectuate complete justice has here 
 again misled them. Perceiving in some cases, 
 either that a testator had anticipated no residue, 
 had accidentally omitted to dispose of it, or had 
 used some words or phrases in the will which made 
 it doubtful whether he intended the executors to 
 have it, they have introduced parol evidence to ex- 
 plain the will, which innovation has introduced 
 evils which have since been deeply felt and com- 
 plained of. " I have," says Lord Alvanley, " taken 
 " the more time on account of a doubt suggested 
 " by a learned Judge with respect to the admission 
 " of parol evidence. No man has a greater regard 
 " than I have for his decisions and his doubts, and 
 " I should have been glad to have found myself 
 " warranted to hold parol evidence not admis- 
 " sible. No man sees the danger or feels the 
 " inconvenience of admitting it more ; but I have 
 " carefully looked into all the cases : they are so 
 " numerous, that it is a disgrace to the court.
 
 294 ON THE PRESENT STATE OF THE 
 
 " There are near fifty in print upon this point."* 
 Even in the total absence of parol evidence, the 
 refusal to give the executors the residue where it 
 is not clearly given to some other persons, has 
 given rise to such endless discussions and de- 
 cisions about the testator's presumed intention, 
 that it has afforded a subject of lamentation to 
 almost every judge who has sat in Equity during 
 the last eighty years.f These questions have 
 been called " a perpetual fund for the courts 
 " since the rule of law has been deviated from."J 
 We are informed by Sir J. Strange " That a 
 " bill was brought in by Lord King to settle this 
 " matter, which did not fail on any particular rea- 
 " son, but unfortunately there was a difference be- 
 " tween the two Houses, and this was thrown out 
 " by way of reprisal ; for," adds he, " I well 
 " remember the history of it." The neglect to 
 revive so useful a measure does no great honor to 
 Lord King's successors, and it is to be hoped that 
 one of a similar nature will soon be again intro- 
 duced into Parliament, and attended with a more 
 successful issue. 
 
 Next to the interference of courts of Equity 
 with the Common Law rights of executors to the 
 
 * 2 Vesey, jun.'s Rep. p. 474. 
 
 t See a vast variety of cases collected in Haddock's Equity, 
 v. ii. p. 97107- 
 
 I 2 Vesey's Rep. 94. 166. 2 Peere Williams, 340. 4 Brown's 
 C.C. Rep. 251. 1 Ves. 277. 
 
 2 Vesey's Rep. 166.
 
 CIVIL LAW OF ENGLAND. 295 
 
 surplus, comes their interference with the Com- 
 mon Law rights and duties flowing from the rela- 
 tion of husband and wife. A disposition has 
 lately been evinced to exempt altogether the se- 
 parate property of married women from all general 
 demands against them.* Whether this doctrine 
 may ultimately be approved or not, it is indis- 
 putably settled that whenever courts of Equity 
 assist the husband to recover the effects of the 
 wife, and there has been no settlement at all on 
 the marriage, or one which is deemed insufficient, 
 they compel the husband to execute either an origi- 
 nal or additional settlement, as the case may 
 happen. The doctrine is laid down by Lord 
 Hardwicke with much precision. " This court," 
 says he, " according to the power it exercises, and 
 " the care it always takes of the interest of feme 
 " coverts, will either where there is no provision at 
 " all for the wife, on money coming to her, oblige 
 " the husband, before he is permitted to touch it, 
 " to make some provision for her ; or where there 
 " is a slender provision only made before, on an 
 " accession of fortune to the wife, if it be consi- 
 " derable, oblige the husband to make a further 
 " provision."t This is the rule, if the assistance 
 of courts of Equity is required. But if the pro- 
 perty of the wife is in the hands of a trustee, if that 
 trustee should pay it over to the husband when 
 requested, the receipt of the husband is held by 
 courts of Equity to be a sufficient discharge to 
 
 * 3 Maddock's Rep. 79 & 387. But see 1 Vern. 326. 
 t 3 Atkyns's Rep. 720. 2 P. W. 639- 3 P. W. 205.
 
 296 ON THE PRESENT STATE OF THE 
 
 the trustee to all intents and purposes whatsoever. 
 It is thus made to depend entirely upon the will 
 and pleasure of the trustee, whether the wife shall 
 be deprived of a settlement, or enjoy it. It is 
 also in the power of the husband to assign some, 
 but not all, expectancies of his wife for a valuable 
 consideration, without limitation or controul.* In 
 no case is the wife's property bound where she 
 survives the husband, unless it has been reduced 
 into possession ; and if he becomes a bankrupt, his 
 assignees, in order to entitle themselves to any 
 aid from courts of Equity, must consent to make 
 a settlement upon the wife proportioned to its 
 value.f Courts of Equity, and even courts of 
 Common Law, have also from laudable, but per- 
 haps mistaken motives, been prevailed upon to 
 confirm contracts for the voluntary separation of 
 husband and wife. If the contract is made 
 directly between husband and wife, it is admitted 
 to be invalid ; but if the transaction is effected by 
 means of trustees, the husband covenanting to 
 pay them a certain annual sum, and they cove- 
 nanting for that sum to indemnify him against the 
 debts of his wife, it is then held that the agree- 
 ment is effectual. Lord Ellenborough has ob- 
 served, with allusion to the practice of courts of 
 Common Law, " The question which has been 
 " agitated, appears to have been laid at rest for a 
 " long period by repeated decisions, and the 
 
 * 2 Atkyns's Rep. 207, Sf. 549. Vesey's Rep. v. ix. p. 99. 
 2 Mad. Eq. 16. 
 t 9 Vesey, 99.
 
 CIVIL LAW OF ENGLAND. 297 
 
 *' uniform decisions of the courts. If it were now 
 " a new question, whether any contract could by 
 " law be made which tended to facilitate the se- 
 " paration of husband and wife, I should have 
 " thought that it would have fallen in better with 
 *' the general policy of the law to have prohibited 
 " any such contract. But they are now become 
 " inveterate with the law, and we cannot reject 
 " the present on that ground, without saying that 
 " all contracts which have the same tendency are 
 " vicious ; which would extend for aught I can see 
 " to provisions for pin-money, or any separate 
 " provision for the wife which tends to render her 
 "independent of the support and protection of 
 " her husband."* In courts of Equity I conceive 
 it still to be the rule that such contracts may be 
 carried into execution/}" though Judges in Equity 
 have strongly doubted the foundation of their own 
 jurisdiction. J In speaking of the practice of Ec- 
 clesiastical Courts in such cases, Lord Stowell has 
 remarked, " These courts, therefore, to which the 
 " law has appropriated the right of adjudicating 
 " upon the nature of the matrimonial contract, 
 " have uniformly rejected such covenants, as in- 
 " significant in a plea of bar ; and leave it to other 
 " courts to enforce them so far as they may 
 " deem proper, upon a more favourable view (if 
 " they entertain it) of their consistency with the 
 
 * 2 East, 293. 
 
 t 3 BroAvn's Ch. Cases, 6l4. 
 
 I 3 Vcsey, 352. 1 1 Vesey, 532.
 
 298 ON THE PRESENT STATE OF THE 
 
 " principles of the matrimonial contract."* The 
 whole of these rules of Equity with respect to 
 marriage seem to be laid down without any in- 
 telligible and comprehensive principle to guide 
 or connect them. The execution of agreements 
 between husband and wife for voluntary separa- 
 tion, whether with or without the intervention of 
 trustees, ought in no instance to have been en- 
 forced either at Common Law or in Equity. 
 Cases of great hardship must be expected occa- 
 sionally to occur, but it is infinitely better for the 
 domestic happiness of families and the general 
 good of the public that they should remain unre- 
 lieved, than that any interference with such a 
 sacred obligation should receive judicial counte- 
 nance or encouragement. If either of the parties 
 has given cause for instituting a suit, let the ag- 
 grieved parties apply to the Ecclesiastical Court, 
 where such matters are properly cognizable ; 
 but if they do not think proper to do so, no 
 other tribunal ought to alter the conditions of 
 so intimate a union. The rights acquired by the 
 husband ought to be as strictly and universally 
 enforced as the continuance of the contract. If 
 it is a good law therefore, that the husband 
 should by virtue of his marriage become entitled 
 to the whole personal property of the wife, one 
 can see no principle which can authorise courts of 
 Equity to make any stipulation with him about a 
 settlement, as the price of their assistance. On 
 
 * 2 Haggard's Rep. 318.
 
 CIVIL LAW OF ENGLAND. 299 
 
 the other hand, if it is fit that the husband's right 
 should be restricted, and that where there is no 
 settlement upon the marriage, the wife should not 
 be divested of her property or expectations until 
 a settlement is made ; there is no reason why this 
 should not apply universally, whether he or 
 his assignees get possession of it by his or their 
 own power alone, or by means of Equitable inter- 
 position. On these topics it may be very difficult 
 to determine what the law ought to be ; but when 
 it has once been clearly and definitively settled by 
 the Legislature, courts of justice ought to have 
 little else to do than to carry its enactments into 
 execution. 
 
 The last instance in which courts of Equity 
 have assumed a questionable latitude, though it 
 cannot strictly be said to amount to a relaxation 
 of a legal right, is in permitting biddings to be 
 opened at public sales of property conducted 
 under the direction of the court. The prevailing 
 opinion until lately was, that a sale of property 
 made by authority of the court, might be disaf- 
 firmed at any time before the conveyance was 
 actually completed, provided an advance of at 
 least 10 per cent, was offered upon the preceding 
 bidding.* Anxiety to dispose of the property to 
 the greatest advantage for the benefit of creditors, 
 legatees, widows and infants, has caused this 
 course to be adopted, and little doubt was pro- 
 bably entertained that it would prove beneficial. 
 
 * 3 Maddock's Ilcp. 314.
 
 300 ON THE PRESENT STATE OF THE 
 
 " Hours," says Lord Hardwicke, " should not be 
 " too strictly kept in sales of property under the 
 " direction of the court."* Succeeding Judges 
 have extended this principle, until the effect has 
 been so prejudicial as to call forth the following 
 explicit declaration from Lord Eldon : " I believe 
 " that the rule of opening the biddings, which 
 " was intended to protect, has frequently been 
 " very pernicious to the interest of the suitors in 
 " this court, and that their estates have sometimes 
 " sold for next to nothing in consequence of it. 
 " But it is the practice of the Court, and it has 
 " been acted on in the case of persons who were 
 " present at the sale. That circumstance may 
 " perhaps be an objection, yet many cases might 
 " be put in which it would be impossible to act 
 " upon it as a general rule. Each case must be 
 " governed by its special circumstances : no ge- 
 " neral rule can be laid down one way or the other: 
 " but it is quite impossible to say that there is no 
 " case in which a person present at the sale shall 
 " open the biddings. The practice of the court 
 " cannot be altered by any Judge : it may perhaps, 
 " with reference to future cases, be necessary 
 " to consider the subject with the assistance of 
 " the Master of the Rolls and the Vice-Chancel- 
 " lor."f Here the matter has ever since rested, 
 and the observations which have been made serve 
 no other purpose than to excite regret in the mind 
 of the legal inquirer, that so large a portion of 
 
 * Atkyns's Rep. 202. t 2 Jacob and Watkin's Rep. 348.
 
 CIVIL LAW OF ENGLAND. :r , 30! 
 
 Lord Eldon's merit should be found to consist in 
 the excellence of his unfulfilled intentions. 
 
 3. A third way in which courts of Equity have 
 transgressed their legitimate bounds, is in the 
 evasion of beneficial statutes. Courts of Justice, 
 when expressing themselves in the abstract, in- 
 variably declare their resolution to adhere to the 
 letter as well as spirit of acts of Parliament in 
 their determinations, and yet there is nothing of 
 which in practice they are more forgetful. " The 
 tf statutes of Mortmain," says Lord Keeper Hen- 
 ley, " began with Magna Charta. I have heard 
 " the late Lord Chancellor go through them all, 
 " and conclude with saying, he thought they had 
 " been rendered ineffectual by the interpretation 
 " which had been put upon them by courts of 
 " justice. This is a melancholy hearing to the 
 " subject. For my part I will support the law as 
 " far as I can, without shaking things which are es- 
 " tablished."* There is scarcely one important act 
 of parliament to which this observation will not 
 apply, of which the statutes for the prevention of 
 frauds, for registration, -for granting annuities, 
 the arbitration act, and the act creating literary 
 property, are alone sufficient to furnish abundant 
 confirmation. 
 
 By 29 Charles 2. c. 3. commonly called " the 
 statute of frauds,'' certain formalities are specified 
 in order to make wills and agreements effectual. 
 By the manner in which this act has been inter- 
 
 * 1 Cox's Rep. 18.
 
 302 ON THE PRESENT STATE OF THE 
 
 preted with respect to the execution of wills, its 
 purpose has been almost entirely defeated. The 
 same thing has happened with respect to the ex- 
 ecution of agreements, which by the act are all 
 required to be in writing. Courts of Equity have 
 held, that if agreements have been in part per- 
 formed, though they be only parol, they are with- 
 drawn from the operation of the statute. It is not 
 the least remarkable circumstance in this case, 
 that almost every thing may become a part per- 
 formance, except the advancement of money, the 
 largest payment of which is regarded as no part 
 performance at all.* The evasion of this act is 
 so familiar to all who are conversant with courts of 
 Equity, that it ceases to excite observation; but 
 if the statute of frauds ought to be abrogated, it 
 would be better to do so avowedly, than to perpe- 
 tuate such a glaring contradiction between the 
 law and the practice. /> 
 
 The object of the act for the registration of 
 deeds relating to real property has been evaded 
 by means of interpretation, fully as much as the 
 statute of frauds. The 7 Anne, c. 20. which lays 
 down certain regulations for the registration of 
 deeds, conveyances, wills, and incumbrances 
 which shall affect any lands or tenements within 
 the county of Middlesex, enacts " that every 
 " such deed or conveyance that shall at any time 
 " after the said 29th day of September be made 
 " and executed, shall be adjudged fraudulent and 
 
 * See cases in 1 Maddock's Equity, 381.
 
 CIVIL LAW OF ENGLAND. 303 
 
 " void against any subsequent purchaser or mort- 
 " gagee for valuable consideration, unless such 
 " memorial thereof be registered as by this act is 
 " directed, before the registering of the memorial 
 " of the deed or conveyance under which such 
 " subsequent purchaser or mortgagee shall claim; 
 " and that every such devise by will shall be ad- 
 " judged fraudulent and void against any subse- 
 " quent purchaser or mortgagee for valuable con- 
 " sideration, unless a memorial of such will be 
 " registered at such times and such manner as is 
 " hereinafter directed." The effect of this pro- 
 vision seems to be, that an instrument duly 
 executed, but not registered, shall be held frau- 
 dulent and void against a subsequent one duly 
 executed, and also registered, according to the 
 provisions of the statute. This is the meaning 
 which the courts of Common Law have according- 
 ly attached to it, when they were lately called upon 
 for the first time, to put a construction upon it.* 
 Courts of Equity however, proceeding on the dan- 
 gerous and untenable principle of contrasting the 
 enacting part of a statute with its preamble, were 
 unwarily led to hold, that no person is entitled to 
 claim the benefit of the act against a prior unregis- 
 tered instrument, provided he or his agent has 
 had direct or constructive notice of its execution. 
 This decision has now been followed by so many 
 others, that though it has destroyed more than 
 half the utility of the statute, it is now too firmly 
 
 * 5 Barnewall and Alderson's Rep. 154.
 
 304 ON THE PRESENT STATE OF THE 
 
 fixed to be shaken.* There is scarcely a Judge 
 of any eminence to be found who has not left some 
 expression on record condemnatory of the princi- 
 ple on which it originally proceeded. Lord Hard- 
 wicke says, " What weighs principally with one, is- 
 " the great danger of overturning an act of parlia- 
 " ment, and making it mere waste paper." And 
 afterwards in that very case conclusively ob- 
 serves, " but what were acts of parliament for, 
 " unless they were effectually observed."']' Lord 
 Camden thinks " if this were a new point, it might 
 " admit of difficulty, but the determination in Bed- 
 " ford v. Bacchus seems to have settled it, and it 
 " would be mischievous to disturb it."J When 
 it was urged before Lord Alvanley " that it was 
 " unfortunate the Court had departed from the 
 " statute by admitting evidence of notice aliunde," 
 his Lordship replied, " I regret the statute has 
 been broken in upon by parol evidence." In the 
 law of France, and in that of Scotland, no infrac- 
 tion of the rule has I believe taken place. The 
 French parliaments gave irrefragable reasons for 
 its rigorous observance. When the Chancellor 
 D'Aguesseau proposed to promulgate a general 
 Ordonnauce respecting French entails, he proposed 
 45 different questions to each of the parliaments 
 of France, on all of which he requested their opi- 
 nion. The 33d article of the 2d title ran in the fol- 
 lowing terms : " Le defaut de publication et 
 
 * See the cases collected 1 Maddock's Eq. 328. 
 
 t 2 Atkins, 275. J Ambler, 680. 3 Vesey's Rep. 384.
 
 CIVIL LAW OF ENGLAND. 305 
 
 '" d'enregistrement ne pourra etre suppled, ni re- 
 " garde comme couvert par la connoissance que 
 " les creanciers ou les tiers-acqu6reurs pourroient 
 " avoir eue de la substitution, par d'autres voies 
 " que celles de la publication et de 1'enregistre- 
 " ment : voulons que le present article soit ob- 
 " serve", a peine de nullite."* Had the law been 
 observed with the same rigour here as in France, 
 the principle would have been clear ; it would 
 have been understood by the whole community, 
 and not one of the crowd of cases which are to be 
 found in the books would have occurred to per- 
 plex it. 
 
 The Annuity Act is another, which the train of 
 cases that have been decided in courts of Equi- 
 ty have substantially evaded. By the 27 Geo. 3. c. 
 26. followed by 53 Geo. 3. c. 141. all annuities 
 except those of which a memorial is enrolled in 
 Chancery in the terms in these acts pointed out, 
 are declared to be invalid. It would appear 
 therefore that questions relating to the invali- 
 dity of an annuity should have been left en- 
 tirely to the courts of Common Law, and that 
 unless one of the parties had complained of sur- 
 prise or circumvention, courts of Equity -ought not 
 to have entertained the suit. Lord Alvanley has 
 expressed his opinion without circumlocution. 
 " I confess," he says, " if the case of Byne v. 
 " Vivian had not been produced, I should have 
 " thought that upon this act the remedy ought to 
 
 * QEuvres D'Agucsscau, torn. xii. p. 4/6. 8vo. ed. 
 X
 
 306 ON THE PRESENT STATE OF THE 
 
 " have been entirely at law, and the court ought 
 " not to have interfered : but that case does un- 
 " questionably furnish a precedent for the inter- 
 " ference of the court ; and in conformity I shall 
 " proceed to consider, how far, and to what ex- 
 " tent the plaintiff is entitled to relief.''* In con- 
 formity to these cases courts of Equity have acted 
 ever since, though almost every Judge who has 
 had the subject under his consideration has 
 regretted that any such precedents should ever 
 have been furnished. The present Chancellor 
 may be named among others, as he has both 
 doubted the jurisdiction assumed by courts of 
 Equity, as well as the wisdom of the act upon 
 which the relief is administered.! 
 
 To the acts which have been evaded by the 
 practice of courts of Equity, the and 10 of 
 William 3. c. 15. "for determining differences by 
 " arbitration' may be added. Lord Hardwicke 
 doubted upon this point very long ago. He says, 
 " I am and have been a good deal doubtful as to 
 " the nicety courts of law have used in determin- 
 " ing awards ; for they have formerly gone so far 
 " as to make it almost impossible for arbitrators 
 " to do what is the main object of the submission, 
 " the putting an end to differences between the 
 " parties."}; Doubts may still be entertained 
 whether courts both of Common Law and Equity 
 have not continued to indulge too much of this 
 very nicety. It may be doubted whether they 
 
 *5 Vesey's Rep. 617. f 7 Vesey's Rep. 17. 
 
 J 2 Atkyn's Rep. 503.
 
 CIVIL LAW OF ENGLAND. 307 
 
 have not indulged it too much with respect to 
 almost every clause of the act the manner of 
 entering- into the agreement to refer * the mat- 
 ters which may be referred and the grounds 
 upon which an award may be set aside, whether 
 proceeding upon a mistake of the arbitrators 
 either with regard to law or fact.f The present 
 tendency seems to be to revert to that strictness 
 of construction from which it would have been 
 better not to have departed. J It requires so 
 much skill and experience to adjudicate correctly 
 either according to law or natural justice, that ar- 
 bitration will in no country be found to be the 
 most satisfactory method of adjusting differences, 
 between contending parties. If ever arbitration 
 happens to become popular, it may be regarded 
 as an infallible indication that justice has from 
 some cause or other ceased to be administered 
 in the tribunals of Common Law or Equity, 
 with a proper degree of cheapness, ability, inte- 
 grity, and expedition. Inferior as a domestic forum 
 generally is to a public one for the settlement of 
 differences, and insufficient as the arbitration act 
 may be to secure all tfye advantages which arbi- 
 tration may be calculated to, yield, still while it 
 
 * 1 Wilson's Rep. 129. 8 Term Rep. 139. 14 Vesey's 
 Rep. 270. 
 
 t 2 Burrow's Rep. 701. 2 Vesey's Rep. 23. and 453. 7 
 Term Rep. 78. 9 Ves. 365. 2 Vernon's Rep. 705. 3 Brown's 
 Rep. 164. 2 Vesey, jun. 18. 5 Vesey, 846". 3 East's Rep. 18. 
 8 East, 344. 
 
 } Turner's Rep. 134. 
 
 x2
 
 308 ON THE PRESENT STATE OF THE 
 
 remains unaltered or unrepealed, no Judges ought 
 to regard it with unbecoming jealousy, but to give 
 it as liberal a construction as that which can be 
 extended to any other remedial enactment. Cor- 
 ruption, in the comprehensive sense of that epi- 
 thet, is the only ground on which the act gives 
 courts of justice any authority to set awards 
 aside, and when they assumed the power of 
 rectifying obvious mistakes in calculation, it was 
 as far if not farther than it was fit for them to go. 
 Whether arbitrators are wise or foolish, they are 
 the umpires to whom the parties have voluntarily 
 submitted, and from their determination they 
 ougjit not easily to be permitted to withdraw. It 
 is a case to which the observation of Lord Keeper 
 North on another subject most emphatically ap- 
 plies : " This court will not loose the fetters he 
 " hath put upon himself, but he must lie down 
 " under his own folly."* 
 
 The last statute to which attention shall here 
 be drawn, is the 8th of Anne, c. 19. which may be 
 termed the charter of Literary Property ; and ap- 
 prehensions may be justly entertained whether it 
 has not been invaded by the judgments recently 
 pronounced in courts of Equity with respect to 
 injunctions. When the property in any literary 
 work is infringed by piracy, experience has 
 shewn it to be generally futile to bring an action 
 at Common Law for damages. The only effectual 
 remedy is to obtain an injunction against the al- 
 
 * Vernon's Rep. p. 101.
 
 CIVIL LAW OF ENGLAND. 309 
 
 leged pirates in a court of Equity. Until of late, 
 injunctions in cases of admitted piracy never were 
 resisted. Within these few years, however, injunc- 
 tions have been opposed upon this ground, that 
 though a piracy was committed, the work pirated 
 was of so libellous or immoral a nature that no 
 property in it existed, and that the author or his 
 assignee was not in that case entitled to the ex- 
 traordinary remedy, which courts of Equity by 
 means of injunctions have it in their power to 
 grant. On these occasions Lord Eldon sitting 
 in Equity has held, that he is bound to satisfy his 
 own mind respecting the character of the work, 
 either by himself reading the work or by hearing 
 it read at the bar; and if in his judgment it be 
 libellous or immoral, he refuses the injunction 
 without at the same time thinking it necessary, 
 as has been done in former times,* to desire any 
 steps to be taken by the Attorney-General for 
 the prosecution either of the publishers of the ori- 
 ginal work or of the piratical copy. Without en- 
 tering into a protracted discussion respecting the 
 soundness of the judgment which has been adopted, 
 the subject is too interesting in itself as a legal 
 question, and too important in its consequences 
 to Society if the law has been correctly ex- 
 pounded, to allow it to be here altogether over- 
 looked. The doctrine now maintained in Equity 
 seems to rest upon the assumption of three 
 distinct propositions : that an injunction is an 
 
 * Vcsey's Reports, v. ii. p. 26.
 
 310 ON THE PRESENT STATE OF THE 
 
 extraordinary remedy : that every suitor who 
 asks for an extraordinary remedy ought to come 
 into court with clean hands : and that unless 
 the judge believes the suitor's hands to be clean, 
 he is not entitled to this extraordinary remedy 
 unless his statutory right has been previously 
 established by a Common Law action. None of 
 these three propositions is unattended with diffi- 
 culty. Whatever an injunction theoretically was, 
 in practice it is, and in the present day ought to 
 be, one of the most ordinary remedies which 
 it is the duty of a court of Equity to dispense. 
 How far a court of Equity should refuse to re- 
 lieve a suitor, unless he comes into court with 
 clean hands, it may neither be easy nor expe- 
 dient to attempt to settle. Courts of Equity must 
 wink hard indeed, not to see the uncleanness of 
 the hands of almost all the parties in many of the 
 questions which they determine. On this point 
 it is not wise for courts of justice to be too fasti- 
 dious. Causes are sometimes brought before 
 the Common Law judges of so palpably ludicrous 
 or immoral a nature, that they refuse to try them ; 
 and no doubt judges in Equity are entitled to 
 exercise the same discretion, but it is the safest 
 course for all of them to look as closely as pos- 
 sible at the merits of the matter in dispute, and 
 as little at the antecedent merits of the parties. 
 In this case, if the hands of the plaintiff are not 
 clean, those of the defendant, by his own confes- 
 sion, are a great deal more polluted. By discou- 
 raging the defendant, therefore, an act of gross
 
 CIVIL LAW OF ENGLAND. 311 
 
 dishonesty would be punished, the dissemination 
 of unprincipled publications would be to a cer- 
 tain degree restrained, the plaintiff would remain 
 exposed to the consequences of whatever turpi- 
 tude he may have committed, and his conviction 
 in a criminal court would almost infallibly be 
 accelerated by the steps he had previously taken 
 in a court of equity for his own protection. But 
 is it certain, that when an injunction is prayed 
 against an admitted piracy, the contamination of 
 the pirated work ought to come at all into con- 
 troversy ? The moment the defendant has made 
 an admission which puts himself out of court, 
 according to the usual course he is permitted to 
 proceed no further, though he might perhaps be 
 able to state that which would put the plaintiff 
 out of court also. The benefit of the act of Par- 
 liament claimed by the plaintiff, and the infringe- 
 ment of the act which is admitted by the de- 
 fendant, seem to close the lips of the defendant 
 as far as the injunction is concerned. The last 
 of the three propositions, which supposes that 
 a plaintiff is not entitled to the injunction un- 
 less the judge believes his hands to be clean, 
 without having first established his statutory 
 right at Common Law, assumes two points to 
 be settled, upon the doubtfulness of which the 
 whole difficulty of the case arises. In the first 
 place, it is so far from being clear that the sta- 
 tute does not protect against piracy books of 
 immoral tendency, that both the spirit and letter 
 of the act afford strong colour to contend that
 
 312 ON THE PRESENT STATE OF THE 
 
 it was meant to extend to books of every kind 
 and description. The contrary has never yet 
 been regularly determined. There are indeed 
 four nisi prius dicta to be found to that effect;* but 
 nothing can be more dangerous than by a side 
 wind to contract the operation of an important be- 
 neficial statute, without the point having ever been 
 either regularly argued or determined. It is pre- 
 cisely this species of evasion which is here made 
 the subject of complaint. But whether this sta- 
 tute should be found ultimately to protect libel- 
 lous or immoral books against piracy or not, 
 it is next to be considered whether every book 
 ought not to be protected by injunction until it 
 has been found libellous or immoral by the verdict 
 of a jury. It would seem that this point must be 
 governed by the provisions of the act of Parlia- 
 ment alone, and if that is adverted to, the case 
 of literary property appears to bear no analogy 
 to the case of patents, or any other to which 
 it has been assimilated. In the instance of a 
 patent, if an exclusive privilege does not belong 
 to A, it must of necessity be open to B, together 
 with all the rest of the world ; whereas, in the 
 piracy in question, it cannot by his own con- 
 fession belong to the pirate by any possibility. 
 It also appears with equal certainty from the act, 
 that property in every literary work is vested in 
 the author or his assignee, until it has been regu- 
 
 * Espinasse's Nisi Prius Cases, v. iv. p. 97- Campbell's Nisi 
 Prius Cases, p. 27 and 511.
 
 CIVIL LAW OF ENGLAND. 313 
 
 larly devested ; and neither the letter, spirit, nor 
 purpose of the act, seem to give any power to an 
 equity judge to effect that devestment, by refusing 
 any of the equitable remedies which are necessary 
 to make that statutory right effectual. Had the 
 injunctions been granted which were in these cases 
 required, the act of Parliament would have remain- 
 ed unimpaired, judges in Equity would have been 
 relieved from a duty for which they are not quali- 
 fied, and with which they ought not to be entrusted ; 
 property in literary works would have been con- 
 fined as it ought to be to their authors and their 
 assignees, and the public would have been saved 
 from the effects of the contraband wholesale trade 
 in indecency and immorality which has been now 
 established. By the course now followed all this 
 is completely reversed. The grossest dishonesty 
 is encouraged : by determining the moral or im- 
 moral tendency of literary works, judges have as- 
 sumed a jurisdiction which it is neither convenient 
 nor constitutional for them to exercise : and has 
 tended more than any other judicial act of the 
 present century to force the circulation of mis- 
 chievous publications into the lowest ranks of 
 society, and the remotest corners of the kingdom. 
 The object of the whole of the remarks which 
 have been hitherto made on the doctrines of 
 Equity, has been to shew the inconvenience of 
 deviating from the clear general rules which any 
 state thinks proper to lay down for the administra- 
 tion of justice. It has been often said to be the 
 hard case which makes bad law. It is the com-
 
 314 ON THE PRESENT STATE OF THE 
 
 passion which is excited against an innocent 
 party ; the prejudice which springs up in the 
 mind against another who is perceived to be 
 overreaching ; together with an amiable desire to 
 effectuate the dictates of natural equity to a 
 greater degree than human tribunals ever will 
 permit; and not a desire to exalt their own power 
 or extend their own jurisdiction ; which are the 
 principal source of those mistakes into which 
 courts of Equity have fallen. At first they flatter 
 themselves they have attained the laudable ob- 
 jects which they had in view. As the suits to 
 which their decisions give rise begin to multiply, 
 their success becomes doubtful. In the end the 
 accumulation of these cases becomes so great, 
 and the shades of distinction between them so 
 nice and perplexing, that at last it becomes irre- 
 sistibly evident, the doctrines of courts of Equity 
 would have been more clear and consistent, and 
 the operation of the courts themselves more con- 
 ducive to the common interest of the suitors, if 
 the judges who preside in them had refrained from 
 that controul over the Common and Statute Law 
 of the land which they have unwarily been led to 
 exercise.
 
 CIVIL LAW OF ENGLAND. 315 
 
 CHAPTER II. 
 
 i 
 
 ON CERTAIN GENERAL REMEDIAL ACTS WHICH 
 MIGHT CONTRIBUTE TO THE IMPROVEMENT OF 
 COMMON LAW AND EQUITY. 
 
 IN the course of the preceding observations a 
 variety of particulars have been mentioned in 
 which the Common and Equitable Law of Eng- 
 land appears to be defective or erroneous, and 
 such suggestions have from time to time been 
 offered as were thought likely to contribute to 
 remove them. Some subjects however of a more 
 general nature still remain, which could not be 
 conveniently treated under any of the preceding 
 heads, with respect to which the enactment of a 
 body of statutory regulations appears to be ur- 
 gently demanded. The only effectual method of 
 accomplishing this would be by drawing up a suc- 
 cession of remedial, consolidating, or declaratory 
 acts. Twenty or thirty of these, framed with com- 
 prehensiveness and accuracy, would tend more to 
 facilitate the administration of justice, than all the 
 labours of all the chancellors, chief justices, and 
 judges, who ever sat in England. Though it may 
 occasionally be doubtful where legislative in- 
 terpretation should end, and legislative enactment 
 begin, it is indisputable that in this country there 
 has been a prodigious excess of the first, and an
 
 316 Otf THE PRESENT STATE OF THE 
 
 equal deficiency of the latter. It could scarcely 
 be credited by a stranger, that with our cart-loads 
 of statutes, to which a quarto volume is every 
 twelve months added of greater bulk than the 
 whole of any other code in Christendom, not 
 above a hundredth part of them consists of ge- 
 neral and permanent laws, while the great mass 
 of our jurisprudence rests upon no other founda- 
 tion than the reasonings and opinions of those 
 persons to whom the exposition of the law has 
 been ministerially entrusted. Judges have wisely 
 preferred the enjoyment of power to the display 
 of its possession, and have as anxiously abjured 
 the character of legislators as they have pertina- 
 ciously usurped their functions. It was said in 
 the arguments for the antiquity and jurisdiction 
 of the court of Chancery, " It cannot be denied 
 " but that the Chancery, as it judgeth in equity, 
 " is part of the law of the land, and of the 
 " ancient Common Law ; and let it not be im- 
 " puted to the Chancery that the chancellor hath 
 " too great an arbitrary power in making his 
 " decrees; for if it be well observed, the judges 
 " use as great power in declaring what is law, as 
 " the chancellor in declaring what is equity ; and 
 " if either be timorous, covetous, or malicious, as 
 " much hurt may be done us by the other; 
 " whereas, in truth, neither ought to proceed in 
 " doubtful cases without the judgment of Parlia- 
 " ment."* Lord Eldon has expressed an opinion 
 
 * Reports in Chancery, part 2. p. 62.
 
 CIVIL LAW OF ENGLAND. 317 
 
 precisely similar. " The power of judges in this 
 " respect may be doubted. Upon that subject, 
 " as it applies to English law, I have formed an 
 "' opinion which leads me to think that the judges 
 " of this day, in England, would not have been 
 " permitted to get rid of the statute of English 
 " entails, as judges of that age did soon after the 
 " passing of the statute de donis."* This is true ; 
 yet the Common Law judges had just as good a 
 right to restrict entails against law on the one 
 hand, as Equity judges had in the course of the 
 last century to extend them against law on the 
 other. If the judges at Common Law destroyed 
 perpetual entails in real property, Equity judges 
 have created a modified entail in personal property, 
 of which last perhaps more than one half of the 
 whole wealth of the country at this time consists. 
 The commencement, progress, and completion of 
 that system of entails of personal property, which 
 has been established by Equity judges, can be 
 traced with the utmost distinctness, and is one of 
 the most glaring assumptions of legislative power 
 which courts of justice have ever exercised. f It 
 is unaccountable how a judge, possessed of so 
 enlightened and comprehensive a mind as Lord 
 Mansfield, should not have perceived the extreme 
 irregularity as well as inconvenience of that legis- 
 lative interpretation and administration of the law, 
 
 * Bligh's Rep. v. i. p. 435. 
 
 t Cases in Chancery, p. 129- P. Williams's Rep. v. i. p. 1. 
 Brown's Chancery Cases, v.i. p. 274.
 
 318 ON THE PRESENT STATE OF THE 
 
 which he carried to such an extent in his own 
 practice. The end he had in view was admirable. 
 The mistake he committed was in the means em- 
 ployed for its attainment. Except in the in- 
 stances in which he attempted to break down the 
 boundaries between Common Law and Equity, 
 the alterations he wished to introduce would in 
 general have improved the law and been bene- 
 ficial to the suitors, but they ought to have been 
 sanctioned by the authority of the legislature, and 
 not established by the mere fiat of the court over 
 which he presided. Such changes as he achieved, 
 would not now be essayed in any department of 
 our jurisprudence. Lord Stowell lately renounced, 
 in express terms, all such authority on the part of 
 the Ecclesiastical Court, over which he so long 
 and so ably presided : " There are certain learned 
 " and ingenious persons," he says, " in that coun- 
 " try who appear to think this rule too lax, and to 
 " wish to bring it nearer to the rule which Eng- 
 " land has adopted ; but on the best opinion 
 " which I can form upon the subject, it is an at- 
 " tempt against the general stream of the law, 
 " which seems to run in a direction totally dif- 
 " ferent, and is not to be diverted from its course 
 " by efforts so applied. If it be fit that the law of 
 " Scotland should receive an alteration, of which 
 " that country itself is the best judge, it is fit that 
 " it should receive it in a different mode than 
 " that of mere interpretation."* In the same de- 
 
 * Haggard's Reports, v. ii. p. 103.
 
 CIVIL LAW OF ENGLAND. ' 
 
 gree that judges become sensible that they have 
 for many years past done too much in the way of 
 legislation, it is to be hoped the legislature itself 
 will become sensible of having done too little. 
 Their inactivity has almost amounted to a renun- 
 ciation of their office. They have attended so 
 little to the changes in the law which have gra- 
 dually supervened, or those which the change of 
 times and circumstances of society render neces- 
 sary, that a great deal of legislation is now found 
 to have become indispensibly requisite. On many 
 subjects remedial acts are required. Upon other 
 points the decisions of courts of law or enactments 
 of the legislature are scattered through so many 
 volumes, that the consolidation of them would be 
 acknowledged as a public blessing. There are 
 other matters on which declaratory acts would be 
 equally beneficial. They would tend, more than 
 any other measure that could be suggested, to 
 disencumber the law of the useless and antiquated 
 learning with which it is oppressed, and deliver 
 it from the perpetual fluctuations to which it is 
 exposed. Those who are practically acquainted 
 with it, are well aware what an idle parade of 
 knowledge is often made both at the bar and on 
 the bench, by entering into unprofitable detail of 
 the rise and progress of any particular doctrine, 
 the circumstances of the cases which were first 
 decided, the changes which the doctrines on the 
 subject have undergone, and the state in which 
 they are supposed to be at the conjuncture in 
 which this didactic lecture is delivered. From
 
 320 ON THE PRESENT STATE OF THE 
 
 all this weary waste of words, a declaratory act 
 would afford instant and complete relief. It 
 would also put a stop to that vacillation which 
 must unavoidably prevail as long as the decisions 
 of the courts are the sole authority for the doc- 
 trines which they propagate. Stare decisis is one 
 of the maxims which is never practised, though it 
 is invariably recommended. If it had, those shifts 
 of doctrine which pervade almost every depart- 
 ment of legal investigation and adjudication never 
 would have been perceptible. Nor can any con- 
 trivance be employed to prevent them. Few 
 topics can be mentioned, in which judgments may 
 not be found which are either directly opposed or 
 not fairly reconcileable with each other, and at 
 other times, though no direct discrepancy exists, 
 the ground upon which some of them proceed is 
 incompatible with principles of wider range and 
 more universal application. Much of this uncer- 
 tainty would be removed by declaratory acts of 
 Parliament, and it never will without them. " I 
 " want very much," says Lord Ellenborough, " to 
 " lay down a certain rule respecting the payment 
 " of interest. I recollect some extremely capri- 
 " cious determinations on this subject, and on all 
 " occasions as little as possible should be left in 
 " the discretion of a judge. My great object is 
 " to have a fixed rule, and to exclude discretion." 
 He then lays down his rule, and the reporter, after 
 quoting a number of these capricious determina- 
 tions, softens the disagreeableness of the fact 
 which they disclose, by subjoining the following
 
 CIVIL LAW OF ENGLAND; 321 
 
 consoling observation : " It would fortunately be 
 " a very difficult matter to fix upon another point 
 " of English law, where the authorities are so 
 " little in harmony with each other."* But who, 
 it may be asked, entitled Lord Ellenborough to 
 decide upon this occasion for all the future chief 
 justices and judges of England? Or what se- 
 curity is there, that some of his successors may 
 not reckon his decisions as capricious as he did 
 those of his predecessors ? Whether future judges 
 adopt his judgments, or one of those which have 
 been superseded, they will still have a precedent 
 to quote in their favour, and perhaps will think 
 themselves guilty of no innovation should they 
 compound the two together. As long as men's 
 minds are variously constituted, so long the best 
 and ablest judges must be expected to differ, and 
 the only way to restrain that difference within 
 the narrowest bounds is to exclude it wherever 
 it becomes apparent by a succession of declara- 
 tory acts. This opinion has already been re- 
 corded by a Committee of one of the branches of 
 ^.the legislature. " In addition to these measures 
 " of regulation," they say, " it has been suggested 
 " to the Committee, that there are some impor- 
 " tant points in the law of Scotland which have 
 " given rise to much litigation, and upon which 
 " declaratory acts might be passed with much 
 " benefit to that country; and that such legislative 
 " declaration, operating to remove doubts upon 
 
 * 1 Campbell's Nisi Pi ius Cases, p. 51. 
 Y
 
 
 322 ON THE PRESENT STATE OF THE 
 
 " these subjects, might reduce the number of ap- 
 " peals which have hitherto grown out of them. 
 " The Committee however have abstained from 
 " entering into any detailed consideration of such 
 " matters, deeming them more fit for the delibera- 
 " tive wisdom of the House."* What is here re- 
 commended for Scotland is not less necessary and 
 would not be less beneficial for England. There 
 is no branch of the law which they would not help 
 to methodise and ameliorate, and it is difficult to 
 fix the limits to which the extension of them might 
 be carried. The adoption of them has already in 
 some degree commenced,! and among those which 
 it might be expedient to pass, a few instances shall 
 in the first place be given of some which are Con- 
 solidating and Declaratory: secondly, of some which 
 are Remedial: and lastly, of such as might be in- 
 troduced for the simplification of the law of Real 
 
 J L J %/ " 
 
 property. 
 
 SECTION I. 
 
 Of Consolidating and Declaratory Acts. 
 
 1. ONE of the classes of consolidating and 
 declaratory acts which it might be desirable 
 to pass, relates to the rights and duties of those 
 
 * Report of the Lords Com. on the Appellate Jurisdiction, 1 823, 
 p. 7. 
 
 t J & 2 Geo. 4. c. 78. ami 1 & 2 Geo. 4. c. 114.
 
 CIVIL LAW OF ENGLAND. 323 
 
 persons whose interests most frequently form 
 the subject of discussion in courts of justice. 
 Among these are parents and children, hus- 
 bands and wives, landlords and tenants, masters 
 and servants, debtors and creditors, tenants for life 
 and tenants in tail, partners, heirs, trustees, and 
 executors. It might be too arduous to endeavour 
 to condense the whole of the law on any of such 
 subjects into one act, but the most distant approach 
 to it would confer an obligation upon the commu- 
 nity of which those who are conversant with 
 courts of justice would most highly estimate the 
 value. Few of the persons who stand in these 
 relative situations have any distinct or general 
 knowledge of their powers and liabilities, and an 
 act of parliament which should point out the most 
 important of them plainly and succinctly, would 
 add materially to the satisfaction of their minds 
 and exact fulfilment of their duties. In the vari- 
 ous offices which a man is called upon to discharge, 
 he is obliged to trust as much to his lawyer as 
 a Roman Catholic is to his priest; though it 
 seems reasonable that the rules of his civil as 
 well as religious conduct, instead of being wrap- 
 ped up in scattered and inaccessible treatises and 
 reports, or collected as they are now beginning to 
 be by the industry of individuals,* should be pre- 
 
 * See the treatise published in 1825, by Sir G. F. Hampson, 
 on " the Means by which those who accept the Situation of 
 " Trustees may perform their Duties without incurring Responsi- 
 " bility." 
 
 Y 2
 
 324 ON THE PRESENT STATE OF THE 
 
 sented to him in a condensed and intelligible form, 
 under the authority of the legislature. Some of 
 the privileges belonging to the characters which 
 have been enumerated, are unreasonable in them- 
 selves, injurious to third parties, and sometimes 
 even to those for whose protection they were ori- 
 ginally given. These would be corrected. Some of 
 the liabilities are also too severe, and others not 
 severe enough. These would be alleviated or in- 
 creased ; and thus the law would become not only 
 more accessible to those who are most interested 
 in its provisions, but the discussions which this 
 process would occasion or hints it would suggest, 
 could not fail to make it at the same time more 
 equitable and consistent. 
 
 2. Another of these consolidating and declara- 
 tory laws which seems to be wanted is, a law de- 
 claring the qualities and attributes of different 
 species of Property. The great preference which 
 was formerly given to real property in England, the 
 small amount of that which was personal, and low 
 estimation in which it was held when the law 
 assumed its present form and consistence, has 
 since proved the occasion of grievous inconve- 
 nience and injustice. Blackstone observes with 
 respect .to those species of property to which the 
 appellation of real is still attached, that " these 
 " being constantly within the reach, and under 
 " the protection of the law, were the principal 
 " favourites of our first legislators : who took all 
 " imaginable care in ascertaining the rights, and
 
 CIVIL LAW OF ENGLAND. 325 
 
 " directing the disposition of such property as 
 " they imagined to be lasting, and which would 
 " answer to posterity the trouble and pains that 
 " their ancestors employed about them ; but at 
 " the same time entertained a very low and con- 
 " temptuous opinion of all personal estate, which 
 " they regarded as only a transient commodity. 
 " The amount of it indeed was comparatively 
 " very trifling during the scarcity of money, and 
 " the ignorance of luxurious refinements, which 
 " prevailed in the feudal ages. But of later years, 
 " since the introduction and extension of trade 
 " and commerce, which are entirely occupied in 
 " this species of property, and have greatly aug- 
 " mented its quantity and of course its value, we 
 " have learned to conceive different ideas of it. 
 " Our courts now regard a man's personalty in a 
 " light, nearly, if not quite equal, to his realty ; 
 " and have adopted a more enlarged and less 
 " technical mode of considering the one than the 
 " other, frequently drawn from the rules which 
 " they found already established by the Roman 
 " law, whenever those rules appeared to be well 
 " founded and apposite to the case in question, 
 " but principally from reason and convenience, 
 " adapted to the circumstances of the tim.es; pre- 
 " serving withal a due regard to antient usages, 
 " and a certain feudal tincture, which is still to 
 " be found in some branches of personal proper- 
 " ty."* This is certainly true, but a vast deal 
 
 * Blackstonc's Commentaries, v. ii. p. 384.
 
 326 ON THE PRESENT STATE OF THE 
 
 more remains to this hour to be done. Even the 
 names which have been given to various species 
 of property are awkward ; the distinctions which 
 have sprung from these names are troublesome, 
 especially if property is reckoned personal in one 
 part of the empire and real in another, as is the 
 case with heritable bonds in Scotland ;* and the 
 consequences are strange and unreasonable. A 
 legacy may be found to be vested or not, just as 
 the property of which it consists is of a real or 
 personal nature.f A condition imposed upon a 
 legatee respecting marriage, is effectual or nu- 
 gatory precisely as it is charged upon real or 
 personal assets.^ If a charge is made on land, 
 whether that charge is created by deed or will, 
 and whether it is provided by way of portion for 
 a child, or given merely as a legacy by collateral 
 relations, if it is payable at a future day, it can- 
 not be raised if the party dies before the day of 
 payment. If the same charge is made upon per- 
 sonal estate, it survives to the representatives of the 
 legatee. At Common Law choses in action cannot 
 be assigned, and an action brought on them must 
 be raised in the name of the original holder; nor 
 do they constitute a sufficient debt to enable a cre- 
 ditor to petition for a commission of bankruptcy. 
 Promissory notes given for money won at play are 
 
 * Haddock's Rep. vol. iv. p. 477- 6 Brown's Parl. Cases, 
 p. 601. 
 
 t Brown's Ch. Cases, vol. ii. p. 77. 
 
 J .See Cases in Maddock's Eq, vol. ii. p. 29. 
 
 Atkyns's Rep. vol. i. p. 485.
 
 CIVIL LAW OF ENGLAND. 327 
 
 also by the statutes that have passed rendered 
 bad in the hands of the most remote innocent 
 holder to whom they may in the course of trade 
 have travelled.* Some very capricious distinc- 
 tions also exist between real assets and personal 
 assets. A lease for any number of years is personal 
 assets; but an estate to the heir for life as special 
 occupant is real assets. A lease for life to a man 
 confers a freehold, whilst a lease for 999 years 
 amounts to no more than a chattel interest. As 
 the last, and in its consequences by far the most 
 important instance of the effect of a name, stock 
 in the public funds is not liable to an execution 
 for debt,t and considering its vast amount, this 
 exemption and the rules of the King's Bench pri- 
 son, constitute two privileges of which debtors 
 ought long ago to have been dispossessed, either 
 by the vigour of courts of law or the wisdom of 
 the legislature. Whether it would be advisable 
 to make one or more separate enactments respect- 
 ing different sorts of property or not, some en- 
 deavour ought to be made to define their several 
 natures and qualities, and to abolish many of the 
 artificial and useless distinctions which prevail 
 among them. 
 
 3. A consolidation of the Poor Laws seems 
 also to be a desideratum. All attempts to rec- 
 
 * Fonblanque's Equity, vol. i. p. 255. 
 
 t 1 Vcsey, Jun. p. 198. 9 Vcsey, 189- 1 Bull and Bcatty's 
 Rep. p. 390.
 
 ON THE PRESENT STATE OF THE 
 
 tify the poor laws have so invariably ended 
 in disappointment, that they may almost be 
 regarded as hopeless. If the principle of these 
 laws can neither be superseded nor improved, it 
 would still be a kind of tabula in naufragio, if their 
 provisions could be framed with such skill and 
 expressed with such perspicuity as to lessen the 
 litigation they occasion. It is painful to see so 
 much of the time of the highest Common Law 
 court in the kingdom, and so large a space in the 
 records of its proceedings, occupied in settling 
 petty disputes about paupers, overseers of the 
 poor, and churchwardens. A careful consolida- 
 tion of the enactments which are now in existence, 
 could hardly fail to contribute towards this effect. 
 4. Another subject on which it is still more de- 
 sirable that a consolidating and declaratory law 
 should be passed, is that of Marriage. In a sub- 
 ject of such moment to society at large as well as 
 to those who stand in the relation either of pa- 
 rents or children, it seems highly expedient that 
 the law which regulates its contraction and disso- 
 lution should be the same in every part of the 
 united empire. With respect to the contraction 
 of marriage, it is the settled law of England, that 
 every marriage is valid there which is valid by 
 the law of the country where it was contracted. 
 This doctrine has been long received, and the 
 reasons of it are so ably expounded in the fol- 
 lowing judgment of Sir Edward Simpson, in 
 1752, that it well deserves quotation. "Allna-
 
 CIVIL LAW OF ENGLAND. 329 
 
 <f tions allow marriage- contracts ; they are juris 
 " gentium, and the subjects of all nations are 
 " equally concerned in them ; and from the infi- 
 " nite mischief and confusion that must neces- 
 " sarily arise to the subjects of all nations with 
 *' respect to legitimacy, successions, and other 
 " rights, if the respective laws of different were 
 " only to be observed as to marriages contracted 
 " by the subjects of those countries abroad, all 
 " nations have consented, or must be presumed 
 " to consent, for the common benefit and advan- 
 " tage, that such marriages should be good or 
 " not, according to the laws of the country where 
 " they are made. It is of consequence to all, 
 " that one rule in these cases should be observed 
 " by all countries, that is, the law of the country 
 " where they are made. By observing this law 
 " no inconvenience can arise, but infinite mischief 
 " will arise if it is not. For instance, supposing 
 " this marriage should be declared good, might 
 " not Mr. Scrimshire nevertheless go into France, 
 " and marry another woman there, the first mar- 
 " riage being null there? He might come into 
 *' England after his marriage in France, and live 
 " here, and could not be prosecuted for bigamy, 
 " according to Kelyng ; for the felony being done 
 " abroad, could not be tried here. The conse- 
 " quence would be that he might have two wives, 
 " and might have lawful issue by both in different 
 " places. His children in France would be bas- 
 " tards in England, but would be legitimate in
 
 330 ON THE PRESENT STATE OF THE 
 
 " France, and might inherit there ; and the chil- 
 " dren by Jones would be legitimate in England, 
 " but bastards in France, and would not inherit 
 " there. The French woman that he married in 
 " France would have no right to English effects, 
 " for Jones is the lawful wife here. Jones would 
 " have no right to French effects, for she is not 
 " the lawful wife in France. And if, as it may 
 " happen, after they have had children, both 
 " should go to France, and should marry again, 
 " and have children in France, what infinite con- 
 " fusion would attend all these consequences of 
 " such a principle, to the great detriment and in- 
 " convenience of themselves and their issue, and 
 " the subjects of both countries ! Again, if 
 " countries do not take notice of the laws of 
 " each other with respect to marriages, what 
 " would be the consequence if two English per- 
 " sons should marry clandestinely in England, 
 " and that should not be deemed a marriage 
 " in France? Might not either of them or both 
 " go into France and marry again, because by the 
 " French law such a marriage is not good ? And 
 " what would be the confusion in such a case? 
 " Or again Suppose two French subjects not do- 
 " miciled here, should clandestinely marry, and 
 " there should be a sentence for the marriage. 
 " Undoubtedly the wife, though French, would be 
 " entitled to all the rights of a wife by our law. 
 " But if no faith should be given to that sentence 
 " in France, and the marriage should be declared
 
 C1VJL LAW OF ENGLAND. 331 
 
 " null, because the man was not domiciled ; he 
 " might take a second wife in France, and that 
 " wife would be entitled to legal rights there, 
 " and the children would be bastards in the one 
 " country and legitimate in the other. So that 
 " in cases of this kind, the matter of domicil makes 
 " no sort of difference in determining them ; be- 
 " cause the inconvenience to society and the pub- 
 " lie in general is the same, whether the parties 
 " contracting are domiciled or not. Neither 
 " does it make any difference, whether the cause 
 " be that of contract or marriage ; for if both 
 " countries do not observe the same law, the in- 
 " convenience to society must be the same in 
 " both cases. And as it is of consequence to the 
 " subjects of both countries, and to all nations, 
 " that there should be one rule of determining in 
 " all nations on contracts of this kind, it is to be 
 " presumed, that all nations do consent to deter- 
 " mine on these contracts, by the laws of the 
 " country where they are made;, as such a rule 
 ** would prevent all the inconveniences that must 
 " necessarily arise from judging by different laws, 
 " and is attended by no manner of inconvenience, 
 " but is for the advantage of the subjects of all 
 " nations." He afterwards subjoins, " In com- 
 " mercial affairs under the law-merchant, which 
 " is the law of nations, there are instances where 
 " sentences for or against contracts abroad have 
 " been given and received here on trials as evi- 
 " dence, and have had their weight. And this
 
 332 ON THE PRESENT STATE OF THE 
 
 " has been allowed on a principle of the law of 
 " nations, which all countries by consent agree to 
 " for the sake of carrying on commerce, which 
 " answers the public in general. There are in- 
 " stances of the same kind in the court of Admi- 
 " ralty. The sentences of all courts of Admiralty 
 " are taken notice of by one another. They are 
 " obligatory by the law of nations. By the mu- 
 " tual consent of all nations, they take notice of 
 " one another's sentences, and give mutual faith 
 " to their proceedings. All courts of Admiralty 
 " in Europe are governed by the same law, the 
 " law of nations. And it is just by the law of na- 
 " tions for nations to be aiding and assisting to 
 " each other. And therefore the law of England 
 " takes notice of the law of nations in commercial 
 " and maritime affairs, because all nations are in- 
 " terested in these questions ; and as all countries 
 " are equally interested to have matrimonial ques- 
 " tions determined by the laws of the country 
 " where they are had, and the mischief would be 
 " infinite to the subjects of all countries if it was 
 " not so, I am of opinion that this is the juris 
 " gentium of which this and all courts are to take 
 " notice."* This judgment deserves the more at- 
 tention from having been pronounced after a pre- 
 vious consultation with Lord Hardwicke ;| and it 
 
 * 2 Haggard's Rep. in the Consistory Court of London, p. 417 
 and 420. 
 t Id. p. 446.
 
 CIVIL LAW OF ENGLAND. 333 
 
 has since received the full concurrence of Lord 
 Stowell, whose enlightened and comprehensive 
 elucidation of this part t)f the law, in determining 
 a case which came before him in 1811,* will al- 
 ways hold a conspicuous place among those lead- 
 ing determinations upon great questions of inter- 
 national law with which that accomplished judge 
 has enriched the jurisprudence of his country. 
 
 As it is the law of Europe that a marriage which 
 is valid in the state where it is contracted is valid 
 every where else, it seems fit that the ceremonies 
 which any state prescribes for the celebration of 
 marriage should, as far as possible, be the same 
 for all classes of persons and on all occasions. On 
 this ground it is somewhat difficult to account for 
 the encouragement of the celebration of marriage 
 in England by licence instead of the method re- 
 gularly prescribed by publication of banns. "When 
 " I consider the Rubric," says Lord Hardwicke, 
 " and the act of uniformity which takes in the 
 " very text of the Rubric, I am astonished how 
 " licences ever got footing in this kingdom ; and, 
 " for my own part, I could wish that all marriages 
 " were by publication of banns only."f It is 
 equally desirable that marriage should be consti- 
 tuted in every part of the same state in the same 
 manner. This would require a change to be made 
 either in the law of England or in the law of Scot- 
 land, or perhaps of both ; but whatever alteration 
 
 * 2 Haggard's Cases, p. 58. f 3 Atkyns's Rep. p. 812.
 
 334 OX THE PRESENT STATE OF THE 
 
 it might be most advisable to adopt, the present 
 state of society strongly demands that some uni- 
 form rule should be adopted. While there should 
 be only one method for the celebration of mar- 
 riage within the territories of the same state, it is 
 no less necessary that it should be declared by 
 legislative authority what requisites are necessary 
 to constitute a marriage between parties, one or 
 both of whom are English ; in those colonies of 
 our own where no positive rules have yet been 
 laid down, or from particular circumstances can- 
 not be followed; where such marriages have 
 been celebrated in the chapel or house of an Eng- 
 lish ambassador by his chaplain or some other 
 clergyman, or by the ambassador himself; with 
 an English army in an enemy's country; or in a 
 foreign country, where, from the situation of the 
 place or the parties, the ceremonies for the con- 
 traction of marriage required by law could only 
 be in part or not at all complied with. In case 
 of any consolidation of the laws of marriage, dis- 
 tinct provisions, specifying what is necessary to 
 the contraction of marriage in all these cases, 
 would be an improvement of the law, and set at 
 rest the minds of many of the parties interested, 
 who have been seriously distressed by the sur- 
 mises which the present state of ambiguity has 
 occasioned.* 
 
 The dissolution of marriage however is of no less 
 moment than its contraction ; and until the inter- 
 
 * 2 Haggard's Rep. p. 371.
 
 CIVIL LAW OF ENGLAND. 335 
 
 national law of Europe shall become as uniform 
 with respect to the latter as it already is with 
 respect to the former, every one of the painful 
 consequences, enumerated by Sir Edward Simp- 
 son, does and must necessarily continue. In some 
 states divorce is not permitted at all ; in others, 
 it can only be granted by the legislature, or su- 
 preme ecclesiastical authority; and in many it may 
 be decreed by the sentence of the court to which 
 the jurisdiction of such matters properly belongs. 
 Under these circumstances, each state judges of 
 the dissolution or subsistence of a prior marriage, 
 and of the validity or invalidity of a subsequent 
 one, according to its own municipal law, and by 
 that law the status of the parties is regulated as 
 long as they remain domiciled within its jurisdic- 
 tion. The consequences of this conftictus legum are 
 lamentable ; and the wandering disposition which 
 accumulation of wealth and facility of communi- 
 cation produce have highly aggravated the evil. 
 There are many couples now scattered over Eu- 
 rope, and among them a considerable number of 
 English persons of rank and fortune, whose change 
 of domicil transforms and re-transforms their chil- 
 dren within a few years from legitimate to illegiti- 
 mate, and from illegitimate to legitimate again, and 
 renders their own union alternately innocent, adul- 
 terous, or incestuous. There seems no possibility 
 of putting an end to this deplorable confusion but 
 by a general agreement among the states of Eu- 
 rope respecting the degrees of consanguinity or 
 affinity within which marriage shall be contracted ;
 
 336 ON THE PRESENT STATE OF THE 
 
 by allowing it to be dissolved for adultery, where 
 there is no collusion, but for no other cause; and 
 by permitting all countries under these restrictions 
 to sanction its dissolution as well as its contraction. 
 If the whole of Europe cannot for its common be- 
 nefit be brought to consent to a uniformity of law, 
 at least uniformity ought to prevail over the 
 whole dominions of the same sovereign, which at 
 present it is well known not to do. The law of 
 Scotland permits the dissolution of marriage to all 
 its inhabitants, and as has been thought with too 
 much facility. The law of England forbids it to 
 all, but the legislature permits it to as many as 
 are rich enough to pay for the indulgence. Every 
 one of these topics requires discussion ; and the 
 law of marriage will never be placed upon a pro- 
 per footing, until it has received a closer and more 
 comprehensive consideration than has ever yet 
 been bestowed upon it. 
 
 5. To the consolidating and declaratory acts 
 which are needed, a general statute of Limitations 
 may be added. A complete and judicious statute 
 of limitations by sweeping away the endless and 
 often unfounded distinctions and analogies which 
 now perplex the law of England, and by intro- 
 ducing a few plain and comprehensive precepts 
 for the information and security of the king's sub- 
 jects, would perhaps put an end to more uncer- 
 tainty and litigation than any one single law 
 which could be mentioned. Expedit reipublic<E 
 ut Jinis sit litium, is an admirable maxim; and 
 its object could not be more effectually for-
 
 CIVIL LAW OF ENGLAND. 337 
 
 warded than by declaring that no effect should 
 be given to suits or rights unless they were 
 claimed or prosecuted within a reasonable period. 
 The utility of some principle of limitation has been 
 recognized in every country where a regular sys- 
 tem of jurisprudence has been established. In no 
 code was its value more clearly perceived or dis- 
 tinctly announced than in that of Rome ; and the 
 law which establishes the forty years' general pre- 
 scription for actions, is concluded in the following 
 words : " Quicquid autem praeteritarum praescrip- 
 " tionum, vel verbis vel sensibus minus contine- 
 ." tur, implentes per hanc in perpetuum valituram 
 " legem sancimus : Ut si quis contractus, si qua 
 " sit actio, quae cum non esset expressim supra- 
 " dictis temporalibus praescriptionibus concepta, 
 " quorundam tamen vel fortuna, vel excogitata 
 " interpretatione saepe dictarum exceptionum la- 
 " queos evadere posse videntur, huic saluberrimae 
 " nostrae sanctioni succumbat, et quadraginta an- 
 " norum curriculis proculdubio sopiatur : nullum- 
 " que jus privatum vel publicum in quacunque 
 " causa vel quacunque persona, quod praedictorum 
 " quadraginta annorum extinctum estjugi silentio, 
 " moveatur : sed quicunque super quolibet jure 
 " quod per memoratum tempus, inconcussum et 
 " sine ulla re ipsa illata judiciaria contentione 
 " possedit, superque sua conditione, qua per idem 
 " tempus absque ulla judicial] sententia simili 
 " munitione petitus est, sit liber, et praesentis 
 " saluberrimae legis plenissima munitione secu- 
 " rus." A subsequent section, after explaining 
 
 z
 
 338 ON THE PRESENT STATE OF THE 
 
 that the actio hypothecaria brought no relief to 
 debtors, though it did to other persons, very 
 wisely extends the benefit of it to them also for 
 this very substantial reason, " ne possessores ejus- 
 " modiprope immortali terrore teneantur."* Al- 
 most every one of our own judges have concurred 
 in these opinions, and among others Lord Coke, 
 Lord King, Lord Alvanley, Lord Manners, and" 
 Sir T. Plumer,t have distinctly expressed their 
 acquiescence in their wisdom. 
 
 Though the public is disposed to do justice to 
 the utility of the law of prescription when gene- 
 rally viewed, they are seldom favourable to its 
 operation in particular instances. When they 
 are told of a palpable and grievous injury that 
 has been sustained through ignorance, confidence, 
 or want of protection, and hear that mere lapse 
 of time cuts off the injured party from all reme- 
 dy, their reason is so subjugated by their feelings, 
 that they almost invariably pronounce it a disgrace 
 to law and equity that this should ever happen. 
 But it would be one of the most chimerical of all 
 benevolent projects to attempt to do complete 
 justice at a distant interval from the date of the 
 acts complained of. If the parties were sure to 
 to continue in life and their circumstances to re- 
 main unaltered, there is no reason why inquiry 
 should not be carried back to an unlimited period. 
 
 * Cod. Lib. 7. tit. 39. 4 and 7. 
 
 t Coke's 2d Inst. p. 95. Cases temp. King, p. 156. Brown's 
 Ch. Cases, v. 4. p. 269. Ball and Beatty's Rep. v. i. p. 156. 
 Jacob and Walker'* Rep. v. ii. p. 140.
 
 CIVIL LAW OF ENGLAND. 339 
 
 But this supposition is incompatible with the 
 lot of humanity. The state of those who have 
 done or received an injury soon changes, and in- 
 nocent parties intervene. Marriages are con- 
 tracted, children are born, and sales, purchases, 
 and exchanges, are negotiated with strangers; all 
 of whom would be exposed to the greatest risk 
 and uncertainty, unless certain land-marks were 
 set up, either by acts of the legislature or the 
 practice of courts of justice, beyond which no in- 
 vestigation should be permitted. If it were, it 
 would do little good and produce incalculable mis- 
 chief. If an estate is taken from one family which 
 acquired it unjustly, and given to another possess- 
 ing a stronger natural title, the public generally 
 expresses satisfaction at such an occurrence, 
 though it rarely proves a blessing to the gaining 
 party. Sudden and unexpected changes are sel- 
 dom propitious either to those who have been 
 elevated or depressed. The accession of rank or 
 fortune affords little real pleasure to those who 
 did not expect and may not be qualified to enjoy 
 it, while the loss of them causes the most sensible 
 pain to those who have been accustomed to their 
 possession. The very constitution of man there- 
 fore obviously requires, that mere length of pos- 
 session should be one of the chief circumstances 
 by which the right to property, privileges, or im- 
 munities, is determined. 
 
 In England the old law was, that the possession 
 of property alone created a right to it, but, says 
 Bracton, " quam longa esse debeat, non definitum 
 
 z2
 
 340 ON THE PRESENT STATE OF THE 
 
 " ajuresed ex justitiariorum discretiorie.*" There 
 have since been a considerable number of statutes 
 of limitation introduced for particular purposes,t 
 but even at the present day, if no other time is 
 specially mentioned, what is called the time of legal 
 memory must begin from the reign of Richard I. 
 in the year 1190, and a possession of 635 years is 
 now required to create a title by prescription. 
 Were it really necessary in all but excepted cases, 
 to trace controverted titles up to this distant pe- 
 riod, it would introduce a scene of uncertainty and 
 confusion which would be absolutely insupport- 
 able. Of this the Common Law Judges have been 
 so sensible, that they have been necessitated to 
 establish a body of presumptions which have no 
 other foundation than their own will and pleasure. 
 They have presumed a person to be dead who has 
 not been heard of for 7 years ; the grant of ways, 
 window lights, easements, markets, offices, and even 
 of letters patent and acts of parliament from a pos- 
 session of 20 years; the satisfaction of bonds and 
 judgments by non-payment for the same period ; J 
 and the surrender of an outstanding term after a 
 
 * Bracton de Leg. lib. ii. cap. 22. p. 51. 
 
 t Among these may be mentioned, Westminster 1st: or 3 Ed. 1. 
 c. 38. Westminster 2d. or 13 Ed. 1. c. 2. et seq. 20 Hen. 3. c. 8. 
 4 and 5 Hen. 7. c. 24. 32 Hen. 8. c. 2. 31 Eliz. c. 5. 20 James 
 1. c. 4. and 16. 10 and 11 W. 3. c. 14. and 31. 4 and 5 Anne, 
 c. 16. 9 Geo. 3. c. 16. 
 
 } See some of the cases on these subjects collected in Term Re- 
 ports, v. 3. p. 151. Saunders' Rep. v. 2. p. 175. Phillips on 
 Evidence, ch. 7. sect. 2.
 
 CIVIL LAW OF ENGLAND. 341 
 
 lapse of 40. They soon afterwards refused to 
 presume the existence of a conveyance, after a pos- 
 session of considerably longer duration;* and 
 have never, even after centuries of possession, 
 attempted to presume a composition for tithes, 
 the commencement of which composition, the 
 jurisprudence of this country, says Lord Hard- 
 wicke, " by a pretty extraordinary law, and 
 " which I believe no other country does, makes 
 " from the transportation of Richard I. to the 
 " Holy Land/'f Those who now preside in courts 
 of Common Law are rather inclined to restrict 
 than extend this branch of their jurisdiction ; but 
 the length of time during which it has been exer- 
 cised, will neither allow them to advance nor 
 retreat without inconsistency. Courts of Equity 
 have raised the same presumptions in matters which 
 are of an equitable nature. This is particularly 
 observable with respect to trust estates, with 
 which courts of Equity are so much conversant. 
 In order to make the equitable qualities of real 
 property in all respects commensurate with those 
 which are legal, courts of Equity have invented 
 the phrases, equitable disseisin, equitable recovery, 
 adverse possession of equitable estates, and some 
 others, without being able to give any distinct 
 explanation of their meaning, and have endea- 
 voured to apply the doctrine of presumptions to 
 equitable estates, in all cases in which it is appli- 
 
 * Barnewall and Aldcrson's Reports, v. ii.p. 782. vol. v. p. 232. 
 t Vescy's Rep. v. ii. p. 511.
 
 342 ON THE PRESENT STATE OF THE 
 
 cable to legal estates at Common Law. Still they 
 have advanced with much slowness and circum- 
 spection, and the elaborate discussions and judg- 
 ments in the important case of Cholmondeley and 
 Clinton, and ultimate decree pronounced upon it 
 in the House of Lords, can scarcely be regarded in 
 any other light than as a legislative enactment set- 
 tling the period of limitation in equitable rights to 
 real property. The period which courts of Com- 
 mon Law and Equity appear to have pitched upon 
 by common consent in such cases, is that of 20 
 years, which may generally be regarded as a suf- 
 ficient length of time either to estop a real right or 
 bar a penal action. At the same time this is not uni- 
 versal, and under the present practice of courts of 
 Equity, cases of extreme hardship sometimes oc- 
 cur. Twenty years does not bar a bill,* and no 
 length of time bars an account between merchants, 
 or a trust account. In a case which came before 
 Lord Alvanley, he said, " If this had been land, 
 " and a fine had been levied, it would have barred 
 " all the world, but being unequitable interest, it 
 " is contended that it is open for ever."f 
 
 Respecting the whole of these doctrines of pre- 
 sumption and limitation, which are gradually ac- 
 cumulating, though they are in general reasonable 
 in themselves, and laudable in their object, they 
 constitute a very inadequate and unsatisfactory 
 method of settling the law on one of the most im- 
 
 * Vesey, jun. 283. 
 
 + 4 Brown's Ch. Ca. 214.
 
 CIVIL LAW OF ENGLAND. 343 
 
 portant subjects of municipal policy. The practice 
 of judges is in direct contradiction with their 
 declarations. " Limitation of suits," says Lord 
 Rosslyn, " is not a judicial power, but a legis- 
 " lative one. The rules of limitation are not mat- 
 " ter of policy, but positive law. Expedit reipub- 
 " lictf utjinis sit litium, but this is not the business 
 " of the Judge, for that would be jus dare not jus 
 " dicere"* Yet in diametrical opposition to this 
 very principle, the law has been made and not de- 
 clared in every one of the cases which have now 
 been mentioned. A great deal too much of the 
 the law of England rests upon analogy, fiction, 
 and presumption. The law of limitations can 
 scarcely be said to rest upon any other, and its 
 defectiveness and incoherence must in a great 
 measure be ascribed to the want of a better foun- 
 dation. It is not easy to account for the supine- 
 ness which the legislature has shewn on this sub- 
 ject. Except in an unsuccessful attempt to intro- 
 duce a restricted statute of limitation in 1728,t it 
 scarcely appears ever to have attracted attention 
 during the whole of the last century. It is to be 
 hoped this neglect will not continue much longer. 
 What the particular period of limitation ought to 
 be, must vary with the rights and interests to 
 which it extends. The precise period of limita- 
 tion pitched upon is not of so great moment. A 
 few years less or more in many instances could 
 
 * 4 Brown's Ch. Ca. 458. 
 
 t Chandler's Parliamentary Debates, v. iv. p. 7-
 
 344 ON THE PRESENT STATE OF THE 
 
 make no great difference. Only let a general and 
 comprehensive enactment be promulgated for the 
 direction both of judges and suitors, and it will 
 settle a greater number of rights, and quiet the 
 minds of a greater number of persons, than any 
 one act which can be pointed out among our 
 public statutes. 
 
 6. The last class of consolidating acts which shall 
 be specified, is an act for the consolidation of the 
 law of evidence. The cardinal rules of evidence 
 established in the law of England are that the 
 best evidence should be produced which the 
 nature of the case admits that the evidence 
 which plaintiffs and defendants adduce should be 
 confined to the points at issue and that the 
 substance of the issue only need be established 
 at the trial. These general principles are ad- 
 mirable, and the success with which they are made 
 to exclude all evidence which is extraneous, and 
 elicit that which is relevant, shows the skilful- 
 ness of their general application. There is per- 
 haps no country in Europe in which the law of 
 evidence is, upon the whole placed upon a better 
 footing than in England, and there certainly is 
 none in which viva voce examinations are conducted 
 with so much ability. At the same time it seems 
 neither to betray inconsistency nor want of can- 
 dour to maintain, that there are a number of points 
 relating both to documentary and oral evidence in 
 the law of England, some of which require to be 
 consolidated and others reconsidered. Some of 
 its rules, which would be excellent if confined
 
 CIVIL LAW OF ENGLAND. 345 
 
 within moderate limits, are pushed to such an 
 extreme of strictness and refinement as to be- 
 come vexatious ;* and others, though they cannot 
 be denied to do good, at the same time do so 
 much harm, that they are not worth preserving. 
 
 Most of the doctrines relating to documentary 
 evidence* flow from two main principles, neither of 
 which seems to rest upon any intelligible founda- 
 tion. The first is, that some courts are Courts of 
 Record,, and others are not Courts of Record ; and 
 the second, that deeds which are thirty years old 
 prove themselves, while those which are not thirty 
 years old must be proved. With respect to Courts 
 of Record, and Courts not of Record, the distinction 
 arose in comparatively barbarous times, and is 
 neither serviceable nor scientific. It seems strange 
 that a court ofpie-poudre, which is incident to every 
 fair and market, and of which the steward of him 
 who has the toll of the market is the judge, being 
 the lowest and least known in practice of all the 
 courts in England, should be a Court of Record, 
 while the court of Chancery, which is the highest 
 court in the country, should not be possessed of 
 that privilege. The same anomaly prevails in 
 many other instances, and the whole distinctions 
 between Courts of Record and not of Record 
 might safely be exploded. Certain general rules 
 might then be laid down, applicable to all courts 
 whatsoever, specifying the manner in which judg- 
 ments or proceedings which have taken place, 
 
 * Sec Phillips, p. 214 232. Variance too much guarded 
 against.
 
 346 ON THE PRESENT STATE OF THE 
 
 either those which are foreign or domestic, should 
 be proved, and the faith which should be given to 
 them when their authenticity has been admitted. 
 A regulation of the same sort might be made 
 relative to deeds. Why should a deed of thirty 
 years old prove itself, more than one of thirty 
 hours ?* The reason appears to be all the other 
 way. If forgery is likely to be committed, it is 
 more likely to be of an old deed than of a new 
 one, some of the witnesses to which are probably 
 still alive, and could be produced, were their 
 presence necessary. If all deeds which are ex 
 fade regular were presumed to be valid, they 
 might be produced a reasonable time before the 
 hearing of the cause for the other party to examine, 
 and if still disputed, the burden of falsifying them 
 might then lie upon the parties by whom they were 
 challenged. This arrangement would give no en- 
 couragement to forgery ; and it would save those 
 who are now obliged to prove deeds a degree of 
 trouble, delay, and expense, which is at present 
 made the means of most severe oppression. 
 
 There are also several matters relating to oral 
 evidence, which require consolidation and amend- 
 ment. At Common Law and in Equity, one wit- 
 ness is sufficient to prove a fact. By the Eccle- 
 siastical Law, which is in most instances similar 
 to the Roman, it requires two. It seems strange 
 that there should be such a striking discrepancy 
 between two laws co-existent in the same coun- 
 
 i 
 
 * Phillips on Evidence, p. 489, <-'t scq.
 
 CIVIL LAW OF ENGLAND. 347 
 
 try, and that too in a principle in such constant 
 and extensive operation. Next to the number of 
 witnesses who are thought necessary to establish 
 a fact, may be mentioned the rules which are now 
 in force with respect to their admissibility. A 
 witness may be disabled from giving his testi- 
 mony from loss of character, interest, or relation- 
 ship. No person who stands in the situation of a 
 convicted felon, or who has been convicted of a 
 prcemunire, of barratry, a conspiracy to accuse 
 another of a capital offence, or who has in certain 
 cases been convicted of being a fraudulent game- 
 ster, is a competent witness.* If it is thought 
 proper to visit the loss of a good name so severely, 
 the principle ought to be carried throughout. So 
 far is this from being the case however, that 
 a person convicted of perjury may file a bill for 
 discovery in Equity, and his own affidavit is suf- 
 ficient to support it;| and a person who stands 
 in the situation of an outlaw is singularly enough 
 permitted to be an executor or administrator.^: 
 A person is also precluded by Common Law from 
 giving evidence as a witness, if he has any decided 
 interest in the suit. While this remains to the 
 present day a fundamental maxim of the Common 
 Law, the very first step which is taken in Equity 
 is to examine the defendant himself upon oath, 
 though he has usually more interest in the suit 
 than any other person. Indeed the rules which 
 
 * Phillips on Evidence, p. 29> ct seq. 
 f Ball and BeaUy's Rep. v. i. p. 565. 
 I Vernon's Rep. v. i. p. 184.
 
 348 ON THE PRESENT STATE OF THE 
 
 are laid down with respect to interest are in many 
 instances so questionable, and in all so numerous 
 and refined,* that one cannot help thinking they 
 might be replaced by others more plain and effi- 
 cacious. It is another rule of law, that husband 
 and wife can neither be examined for or against 
 .each other. In criminal cases this seems to be 
 extremely just: in civil matters its necessity may 
 be doubted at Common Law, and still more in 
 Equity ; for the want of the evidence of the wife, 
 often prevents that disclosure of the truth which 
 the purposes of justice urgently demand. Sup- 
 posing a witness to be neither disqualified by 
 character or relationship, the last point which 
 behoves to be considered is the manner in which 
 the examination of a witness is conducted, and 
 the questions which he is either permitted or 
 compelled to answer. Expressing all due ad- 
 miration of the ability with which the oral exami- 
 nation of witnesses is managed in England ; one 
 cannot help wishing that it were conducted 
 generally with greater gentleness and temper. 
 .An insulting or overbearing tone and manner fre- 
 quently confuses an upright witness, but seldom 
 extracts the truth from one who is unconscienti- 
 ous. In one material point the mode of examina- 
 tion now in use seems defective. As a witness is 
 justly presumed to be rather favourable to the 
 .party for whom he is called, the counsel who 
 cross-examines him is permitted to throw his 
 
 * Phillips on Evidence, p. 43 71-
 
 CIVIL LAW OF ENGLAND. 
 
 questions into a different shape from that which 
 the counsel who called the witness is allowed to 
 do. This is generally found conducive to the 
 discovery of truth. But it not unfrequently hap- 
 pens that a witness, instead of entertaining any 
 partiality for that side for which he is called, is 
 in reality favourable to the other party.* The 
 purposes of justice, therefore, seem to require 
 that where such a bias distinctly manifests itself, 
 the witness should either be cross-examined by 
 the judge himself, or the privilege of cross-exami- 
 nation given to the party by whom he was origi- 
 nally brought forward. To some questions the 
 witness may decline, and to others he is not al- 
 lowed to answer. The witness may, if he thinks 
 proper, refuse to answer any question which tends 
 to criminate himself; and he is only allowed to 
 give evidence of what he has himself heard or 
 seen of the things in question, and, except in a few 
 instances, is not allowed to report the hearsay 
 uttered by a third person. The first of these 
 rules seems unexceptionable : the expediency of 
 the second has given rise to greater difference of 
 opinion than any other matter connected with 
 the law of evidence. The chief reason for the 
 exclusion of hearsay is, that the person from which 
 the facts have proceeded should himself be ex^ 
 amined if living, and, if dead, the report of them 
 should not be received at second hand, because the 
 reporter cannot then be cross-examined. The chief 
 reason for its introduction is, that hearsay is itself 
 
 * Phillips on Evidence, p. 284.
 
 350 
 
 a fact, which like all other facts adduced in evi- 
 dence, ought to be laid before the judge or jury, 
 and allowed to create that effect which the cha- 
 racter of the witness who repeats the hearsay, 
 the circumstances under which it came to his 
 knowledge, and its intrinsic credibility, is calcu- 
 lated to produce upon them. 
 
 Upon all topics connected with the law of 
 evidence, it is the object of the preceding ob- 
 servations rather to promote inquiry than to sup- 
 port any pre-adopted theory. ' There are few 
 subjects where a union of theory and practice is 
 more indispensably requisite in order to reason 
 comprehensively and correctly. The course of 
 examination which took place on the trial of 
 Fualdes, which took place in France some years 
 ago, conclusively proves the necessity of laying 
 down rules of some sorter other for circumscrib- 
 ing the evidence which it is practicable to offer ; 
 and also shews that, however great the benefits 
 may be which the new code has conferred upon 
 the law of France, there are many points on which 
 their practice must of necessity be much too easy 
 as well as unsettled. While an increase of strict- 
 ness would improve the law of France, it may be 
 doubtful whether a relaxation of it would not be 
 equally advantageous to the law of England. It 
 is generally admitted that Lord Mansfield ren- 
 dered a service to the law by confining objections 
 rather to the credibility of witnesses than their 
 admissibility ; * and there are few persons capable 
 
 * Phillips on Evidence, p. 44.
 
 CIVIL LAW OF ENGLAND. 351 
 
 of general reasoning who have turned their atten- 
 tion to the subject, without becoming persuaded 
 that the rules which incapacitate a person from 
 appearing as a witness on account of character, 
 interest, or affinity, might advantageously sustain 
 still further mitigation. Perhaps the law of evi- 
 dence is altogether somewhat too artificial. It 
 not only prescribes one particular method of ob- 
 taining it as the most commodious, but if it is 
 presented in any other manner, it is rigorously 
 rejected. Unnecessary fastidiousness ought care- 
 fully to be avoided ; and rules of evidence, which 
 are of no use except in as far as they are subser- 
 vient to the methodical and effectual discovery of 
 the truth, ought never to be made the means of its 
 concealment. Neither ought the law of evidence, 
 especially in criminal cases, where a crime has 
 been substantially proved, to allow the criminal 
 on mere point of form, to escape from the pu- 
 nishment which regularly ought to follow. The 
 business of human life, or even of courts of jus- 
 tice, could not go on if the proof were to be 
 conducted, or every point were to be proved, with 
 mathematical precision, and all attempts to ap- 
 proach it, directly and powerfully frustrate the 
 ends of justice which they were intended to pro- 
 mote. That some defects of this sort cleave at 
 present to the law of England there is too much 
 reason to suspect, and the correction of them 
 would be one of the advantages with which a 
 revision of the law of evidence could not fail to be 
 accompanied.
 
 352 ON THE PRESENT STATE OF THE 
 
 SECTION II. 
 
 Of Remedial Acts. 
 :! / hlfhi o. * */;,:. vm.-.v .,.-. S- ;', L-. 
 
 No consolidation of laws can take place with- 
 out being at the same time in some degree reme- 
 dial; and few remedial acts can be devised, which 
 are not strictly speaking a consolidation of old 
 laws, rather than the introduction of those which 
 are entirely novel. The only reason for making 
 any distinction between those enactments which 
 have been treated of in the preceding section and 
 those which form the subject of the present is this, 
 that in the one case the consolidation of the law 
 is the main object, and the remedial alterations 
 which ensue are only collateral, while in the other 
 the proposal of a new or at least more effectual 
 remedy for an acknowledged imperfection is the 
 primary object of the proposed enactments. 
 
 1. The first of the remedial acts which may be 
 suggested, is to oblige the plaintiff, at Common 
 Law and in Equity, to give security for the costs in 
 which he may be found liable to the defendant. 
 While legal process ought to be so framed as to 
 make the law as accessible as possible to. every 
 individual, he should never have it in his power 
 to convert it into an engine of injury or oppression. 
 In antient times, both in actions at law and suits 
 in Equity, the plaintiff gave efficient pledges to
 
 CIVIL LAW OF, ENGLAND. 
 
 the defendant that he would prosecute his claim, 
 and if he failed, he and his pledges were answer- 
 able to the defendant for the damages sustained. 
 In Equity this course is specifically pointed out by 
 15 Henry 6. c. 4. which runs in the following 
 terms : " Also for that divers persons have before 
 " this time been greatly vexed and grieved by 
 " writs of Subpoena, purchased for matters deter- 
 " minable by the Common Law of this land, to 
 " the great damage of persons so vexed, in sub- 
 " version and impediment of the Common Law 
 " aforesaid ; our Lord the King willeth that the 
 *' statutes thereof made be duly observed ac- 
 " cording to the form and effect of the same, and 
 " that no writ of Subpoena be granted from hence- 
 " forth until surety be found to satisfy the party 
 " so grieved and vexed for his damages and ex- 
 " pences, if so be that the matter cannot be made 
 " good which is contained in the bill." Though 
 some doubt has been cast upon the authenticity 
 of this statute, because it is not to be found on 
 the parliamentary rolls, the weight of authority 
 has always been conceived to be in its favour, and 
 the allusions which are made to it in the bills in 
 Equity, which were filed soon after its enactment, 
 seem to put the matter beyond the reach of con- 
 troversy.* In the following passage of an old 
 treatise, " Concerning Suits in Chancery," the 
 Chancellor is supposed to be himself answerable 
 
 * Proceedings in Chancery printed by authority of the Com- 
 missioners of Public Records, p. 1 1. 12. 
 
 A A
 
 354 ON THE PRESENT STATE OF THE 
 
 for the costs, unless he follows its provisions. 
 " First, if the Chauncellor grante a subpoena, and 
 " taketh no suritie that the plaintiff shall satisfy 
 '" the party grieved for his damages, if the matter 
 '" in the bill be not founde true, and after the 
 " matter is founde againste the plaintiff, and he is 
 '" not sufficiente to yelde damages to the defend- 
 " aunte, I think that in that case the Chauncellor is 
 '" bouride in conscience to yield damages himself; 
 " because he took no suritie at the grauntinge of 
 *' of the Subpoena, as he should have done by 
 " reason of the statute made in the 15th year of 
 " King Henry the 6th, the 4th chap, whereby it is 
 " enacted, that no subpoena shall be graunted tyll 
 " suritie be founde for the truthe*." Except in a 
 few cases no security is now given for costs either 
 at Common Law or in Equity. According to the 
 present practice in Equity it cannot be asked. 
 No security is now given unless the plaintiff has 
 quitted, or means to quit the jurisdiction. In 
 another instance the hardship is still more severe; 
 If the plaintiff should be unable to pay the costs, 
 or die before the costs have been taxed, the de- 
 fendant has no claim either at Common Law or 
 in Equity against his executor, and the injury 
 he sustains is irremediable-t In actions at Com- 
 mon Law also, plaintiffs who have no permanent 
 residence in this country, frequently bring actions 
 which entail heavy expence upon the defendant, 
 
 * Printed among Hargrave's Law Tracts, p. 348. 
 t See cases quoted in 2 Mad. Equity, p. 530.
 
 CIVIL LAW OF ENGLAND 355 
 
 which their inability or departure prevents from 
 being ever made good against them. Justice 
 seems to require that the law in this respect 
 should be restored to its original state, and that 
 defendants should be relieved from a serious risk 
 to which they have been exposed, perhaps with* 
 out much necessity or consideration. 
 
 2. As both courts of Common Law and Equity- 
 ought to have the power of obliging the plaintiff to 
 give security for costs, it seems still more expedi- 
 ent that courts of Common Law should have the 
 means of preserving and protecting property 
 pending litigation. However unaccountable it 
 may be thought, the fact certainly is, that they 
 have no means of effecting either of these objects; 
 and the market of a saleable commodity may be 
 lost, or the substance of a perishable one destroy- 
 ed, without any court of Common Law being able 
 to take a single step for its preservation or dis- 
 posal. When any interposition is required, re- 
 course must be had to the court of Chancery, 
 which cannot be done without great delay, ex- 
 pence, and inconvenience. Why then should not 
 courts of Common Law be empowered to make 
 such orders as the exigency of the case requires ? 
 It seems that the possession of such a jurisdiction 
 would be both convenient and becoming; and 
 though it might occasion the appointment of some 
 new officers, there seems no reason to apprehend 
 that they would alter either the constitution or 
 functions of the tribunals to which they might be 
 made subservient. 
 
 A A 2
 
 356 ON THE PRESENT STATE OF THE 
 
 3. Courts of common law and Equity ought to 
 have greater powers in awarding costs. The rule 
 adopted in most cases at Common Law is, if the 
 plaintiff recovers nothing against the defendant, he 
 pays the defendant's costs : if he recovers above 
 40 shillings his costs are paid by the defendant : 
 and if the plaintiff recovers damages, but not to the 
 amount of 40 shillings, each party pays his own. In 
 Equity, the general rule is, that costs are entirely 
 in the discretion of the Judge, and are awarded 
 either against plaintiffs or defendants, whenever 
 their conduct is so unconscionable as to merit that 
 mark of the court's disapprobation. To the prin- 
 ciple of these rules no objection can be made. 
 In themselves they are just. The grievance 
 which is felt results from the manner of their 
 application. When costs have been awarded, the 
 bill of costs then comes to be taxed, and the per- 
 son by whom the costs are received then per- 
 ceives to his surprise and mortification, that many 
 of the items of which the bills of costs consist, 
 are of a nature which by the technical rules of 
 courts of Common Law and Equity, the party who 
 was condemned in costs, is not obliged to pay. 
 This practice appears to be a substantial contra- 
 vention of the principle on which it is founded. 
 Allowances which are adequate at one time, may 
 from an alteration in the value of money, length 
 or shortness of proceedings, the mode in which 
 they are conducted, or any other cause, become 
 either excessive or inadequate at another. When 
 one party has acted so that he is decreed to pay
 
 CIVIL LAW OF ENGLAND. 357 
 
 the costs of the suit to another, there is scarcely 
 any rule of justice which ought to be more invari- 
 ably observed than that when full costs are given, 
 they should cover every charge which the party 
 receiving them has reasonably incurred. The 
 payment of costs is always important, and fre- 
 quently the most material matter in the cause. 
 What these costs are, it is not difficult to ascertain. 
 They can be neither more nor less than those 
 which the course of practice points out to be ne- 
 cessary in the conduct of causes of a similar kind 
 and magnitude. If a client retains more than the 
 usual number of counsel, or gives them an extra- 
 ordinary remuneration, this ought not to be allow- 
 ed to swell the bill of costs which an adversary is 
 obliged to pay, but it ought to include every 
 charge, to which, according to established usage, 
 he is in any way subjected. In this position no 
 gaining party is ever now placed. Both in courts 
 of Common Law and Equity, the party to whom 
 costs are awarded, however laudable his conduct 
 may have been, and however blameable that of 
 his opponent, invariably finds himself at the con- 
 clusion of the suit, a considerable loser ; and in 
 some courts, as for instance in the court of Ex- 
 chequer, the very phrase of costs as between solid- 
 tor and client, is absolutely unknown. It is also 
 established by immemorial usage, that in all 
 causes between the crown and a subject, the 
 crown never either pays costs or receives them. 
 That this privilege now forms part of the royal 
 prerogative, there can be no question, and it is also 
 possible that objections may be stated against any
 
 358 ON THE PRESENT STATE OF THE 
 
 interference with it, of which none but those who 
 are conversant with crown business can be suffi- 
 ciently apprised. But to common observers it 
 seems that no single point could be mentioned, 
 where the crown would lose so little, and indivi- 
 duals would gain so much by the abandonment of 
 an apparently oppressive privilege. In fact the 
 continuance of this branch of the prerogative is 
 .of little use to the crown, for while it seems at 
 first sight to be rigorously maintained, in most of 
 the cases which occur it is virtually surrendered. 
 In all revenue actions brought by the Boards of 
 Customs and Excise which are afterwards settled 
 by compromise, amounting probably to a half of 
 the whole of those which are brought against sub- 
 jects on behalf of the crown ; it was formerly an 
 invariable preliminary condition, that the costs 
 incurred by the crown solicitor should be paid by 
 the defendant. That practice has now been 
 dropped in appearance, though in reality it is 
 still observed ; for whenever a defendant comes 
 to a compromise with the crown officers before 
 trial, he agrees to pay to the crown a certain fixed 
 sum, in fixing which the amount of the crown 
 solicitor's bill is as regularly taken into account as 
 when its discharge formed one of the specific sti- 
 pulations of the compromise. Should it be urged 
 that the integrity of the crown law officers is a 
 sufficient guarantee against the oppressive ex- 
 .ercise of this privilege ; the weight which may 
 ^belong to this consideration, will by all who are 
 (acquainted with their characters, and the jealousy 
 with which tjieir conduct is watched, be un-
 
 LAW OF ENGLAND. 359 
 
 reservedly admitted. Still however all men are 
 subject to inadvertence and error, and condemna- 
 tion or acquittal by the judge or jury, is and 
 ought to be the only judicial test of guilt or inno- 
 cence ; and whatever the moral presumption may 
 be, it ought not to be in the power of the most 
 merciful and scrupulous public officer, to -load a 
 defendant with the expence of defending himself 
 against a civil action, unless in those cases where 
 he proves him guilty. In Equity the crown re- 
 ceives costs, though it does not pay them. The 
 doctrine maintained there has lately been dis- 
 tinctly announced by the present Vice-Chancellor. 
 " It is said that although this result may not have 
 " been in the contemplation of the Legislature, it 
 *' is the necessary consequence of a general princi- 
 " pie that the crown can neither pay nor receive 
 *' costs. I find no such general principle in courts 
 " of Equity. The Attorney-General constantly re- 
 '* ceives costs where he is made a defendant in 
 " respect of legacies given to. charities ; and even 
 f< where he is made a defendant in respect of the 
 " immediate rights of the crown in cases of testa- 
 ** cy. And where charity informations have been 
 " filed by the Attorney-General, costs have been 
 " frequently awarded him in interlocutory mat- 
 ' ters, independently of the relator. And this 
 " supposed general principle which is asserted by 
 " the defendants, is not maintained by any decision 
 " or by any dictum which appears in any reported 
 " case. Collecting the law of the court in this case 
 *' as in others from its practice, I am of opinion, that
 
 360' 
 
 ON THE PRESENT STATE OF THE 
 
 " although the Attorney-General suing in the dis- 
 " charge of his public duty could never be made 
 " to pay costs in a court of Equity, yet it is not 
 " the rule of a court of Equity that he cannot re-* 
 " ceive costs, and that the defendant must in this 
 " case pay his costs. It is hardly necessary to 
 " to notice the reference that has been made to 
 " the case of costs in a court of Law. In those 
 " courts, costs eo nomine were unknown to the 
 " Common Law, and were recovered only by in-' 
 " creased damages. The statute of Gloucester, 
 " which first gave costs expressly, did not extend 
 " to the King, because he was not specially 
 " named, but it was expressly provided by 33 
 " H. 8. c. 9. that the King shall recover his debt 
 *' with costs."* The explanation here given of the 
 origin of the peculiar situation in which the crown 
 stands with respect to costs, strengthens every 
 objection which can be urged against its continu- 
 ance. It shews its introduction to have sprung in 
 a rude age out of a technical doctrine of the Com- 
 mon Law, and the relinquishment of it considering 
 our present habits and opinions would neither affect 
 the crown in its patrimonial interest or dignity. 
 It can be no more derogatory to the dignity of the 
 crown to contend about costs, than to contend with 
 smugglers and contraband traders about fines and 
 penalties, or the forfeiture of soap, candles, to~ 
 bacco, or spirits, by which the costs were occa- 
 sioned. But in reality, the dignity of the crown is 
 
 .*. 1 Symons' and Stuart's Rep. p. 396".
 
 CIVIL LAW OF ENGLAND. 301 
 
 in no degree implicated in the matter. It is a mere 
 question of expediency whether the right which 
 the crown now enjoys, should be maintained or 
 abandoned. The crown acts by its officers for 
 the benefit of the public, and as it submits to 
 come into courts of justice to have its claims heard 
 and determined like those of any other suitor, 
 there seems no reason why it should not give and 
 receive-costs in the same manner. Instead of the 
 gracious and voluntary surrender of this anoma- 
 lous and obnoxious immunity depriving the crown 
 of a really valuable or splendid appurtenance, it 
 seems difficult to conceive any measure better 
 calculated to enhance its real dignity, or to 
 strengthen its hold upon the esteem and affections 
 of the people. 
 
 As the King pays no costs when he proceeds in 
 courts of Common Law or Equity by his proper 
 officers, neither does the House of Commons 
 when it institutes an unsuccessful impeachment 
 against any individual before the House of Lords. 
 From the tediousness and solemnity with which a 
 trial of this description is necessarily conducted,, 
 it must be burdensome even to the wealthiest indi- 
 viduals in the state, and absolutely ruinous to 
 every other person. How it has happened that 
 the House of Commons has never had the justice 
 or generosity to defray the expence of those 
 whom it has ineffectually prosecuted, is a curious 
 fact in the history of a country so tenacious of 
 the character and tendency of its judicial insti- 
 tutions. It would huve been more natural to anti-
 
 362 ON THE PRESENT STATE OF THE 
 
 cipate that as it had failed to substantiate the 
 charge it had been induced to make, and could offer 
 no compensation for the distress and anxiety of mind 
 it had entailed, that it would have been impatient 
 to make that pecuniary reparation which it hag 
 in its power to bestow. It is difficult to suggest 
 any reason for the adoption of a contrary line of 
 conduct but that which has been already alluded 
 to in the case of the law officers of the crown. It 
 may be said that whether it succeeds or not, it is 
 not to be presumed the House of Commons will 
 institute any impeachment without sufficient foun- 
 dation : that such trials are so rare it is not 
 worth while to alter the established practice 
 on their account : and that the charge which it 
 entails upon individuals has in no instance been 
 either claimed or publicly stated as a grievance. 
 Allowing air the weight to these reasons which 
 they can properly receive, they do not appear to 
 be satisfactory. The law of England, conforma- 
 bly to the dictates of sober reason and compre- 
 hensive policy, reposes implicit confidence in the 
 justice and wisdom of no public men either in 
 their single or collective capacity, and permits no 
 insinuations to be directed against the innocence 
 of those whom a competent tribunal has previous- 
 ly acquitted. Nor will it be found upon a retro- 
 spect of our history within the last hundred and 
 fifty years, that prosecutions of this sort have been 
 so rare, or the motives of those who urged them 
 so unsuspected as is generally assumed. Within 
 the period just specified there have been no fewer
 
 CIVIL LAW OF ENGLAND. 363 
 
 than six or seven impeachments, and if only one 
 case had occurred, the severity with which it 
 pressed upon its victim would only have become 
 the more conspicuous. The less frequent such 
 proceedings and acquittals are, the less would 
 the reimbursement of the defendant's costs be 
 felt by the public, and the more unreasonable is 
 it to suffer them to remain upon the shoulders 
 of those who sink beneath them. The injustice 
 would not be the less glaring if an example of it 
 occurred only once a century. Not one of the 
 impeachments which have taken place since that 
 of Lord Clarendon have cost less than 20,000 or 
 30,000, and that of Mr. Hastings is said to have 
 been near 100,000. Indeed every one of them 
 has either totally destroyed, or irretrievably in- 
 jured the fortune of him against whom they were 
 directed, and the absence of all complaint, seems 
 to prove rather the magnanimity of the sufferer 
 than the moderation of the suffering. Looking at 
 tjie subject merely as one in which the fair and 
 equitable administration of justice is concerned, it 
 seems wholly inconsistent with the manliness and 
 generosity of a great and free country, to allow any 
 branch of its legislature at its own will and plea- 
 sure to direct its concentrated skill and influence 
 against a solitary individual, and to crush him by 
 the expence of the trial, though they had failed 
 in making good the accusation. 
 
 4. Another remedial act would be to enable 
 courts of Common Law and Equity to carry their 
 decrees more effectually into execution. Where
 
 364 ON THE PRESENT STATE OF THE 
 
 trustees in whose names stock is invested are out 
 of the jurisdiction, obstinate, bankrupt, or lunatic, 
 an order for its transference may now be obtained 
 by 36 Geo. 3. c. 90,* and in Ireland by the Irish 
 statute, 23 Geo. 3. c. 35. This is beneficial in 
 itself, and a precedent for further amendments. 
 The means which the court of Chancery employs to 
 enforce its decrees for delivery of the possession 
 of lands, is by a writ of assistance directed to 
 the Sheriff, and first used in the time of James I. 
 In other cases it is by process of contempt inper- 
 sonam, or by attachment and sequestration.'-f' 
 " Sequestrations," jt is said, " were not heard of 
 " till the Lord Coventry's time, when Sir John 
 " Read lay in the Fleet with 10,000/. in an iron 
 *' chest in his chamber, for disobedience to a de- 
 " cree, and would not submit and pay the duty. 
 " This being represented to the Lord Keeper as 
 " a great contempt and affront put upon the Court, 
 " he authorised men to go and break up his iron 
 " chest, and pay the duty and costs, and leave 
 " the rest to him, and discharged his commit- 
 " ment. From thence came sequestrations, 
 " which now are so established as to run of 
 " course when all other process fails, and is but 
 " in nature of a grand distress, the best process 
 " at common law after a summons, such as a sub- 
 " pcena is. What need all the grievance and de- 
 
 * See Lord Rosslyn's recommendation, 3 Vescy's Rep. p. 24, 
 jn consequence of which the bill is supposed to have been passed, 
 t 1 Vesey's Rep. 454.
 
 CIVIL LAW OF ENGLAND. 365 
 
 " lay of the intervening process?"* In many 
 respects, however, the power which courts of 
 of Equity have obtained by the process of attach- 
 ment and sequestration, is manifestly insuffi- 
 cient, f To make the process of courts of Equity 
 in furtherance of their orders and decrees more 
 general and effectual, Sir W. D. Evans has pro- 
 posed, " That it should be competent for any 
 *' court of Equity to make any decree or order re- 
 " specting the estate and interest of any person 
 " under 21, as if such person had attained that 
 " age, and in case the consent or act of any per- 
 " son under 21 be required, to order the same to 
 " be given or done by or on the behalf of such 
 " persons as if they were of full age That any 
 " mortgagee shall be entitled to apply to Equity, 
 " that unless the mortgage shall be paid within a 
 " given time, the property mortgaged may be sold, 
 " and that the conveyance to him who purchases 
 " from the mortgagee, may be completed without 
 " the concurrence of the mortgagor That where 
 " courts of Equity shall declare any hereditaments 
 " subject to the payment of any sum of money, 
 " they shall be authorised to sell or mortgage the 
 " whole or a competent part of them, and that 
 " the conveyance of them by a proper officer 
 " should to all intents and purposes be valid and 
 
 * North's Life of Lord Keeper North, v. ii. p. 73. See also 
 Swanston's Reports, v. iii. p. 282, for the History of Sequestration. 
 
 f 1 Vesey's Rep. p. 182. Uickens's Rep. p. 107. 3 Vesey^ 
 Jim. Rep. p. 24.
 
 ON THE PRESENT STATE OF THE 
 
 " effectual. And that any person ordered by the 
 " decree or order of a court of Equity to execute 
 " any instrument, and shall be unable on account 
 " of illness or absence, or refuse or neglect so to 
 " do, to order the same to be executed by a proper 
 " officer, and to give the same effect to such exe- 
 " cution as if it had been that of the person di- 
 " rected to execute."* 
 
 The complaints of the insufficiency of the pow- 
 ers possessed by the courts of Common Law for 
 enforcing their decrees are of still longer standing. 
 " It is objected, that when the plaintiff hath judg- 
 " ment and execution in a suit, he can hardly get 
 " it executed by the sheriff; or if he can, he can 
 " hardly come by the monies when the sheriff hath 
 " it, for he will, if he please, make the plaintiff 
 " stay a long time for his return, and when he hath 
 " taken goods in execution, put the plaintiff to 
 " have a new writ to force him to sell them. It 
 " is offered as to the cure of all these things to 
 '* be considered, that an inquiry be first made 
 " by a jury what the defendant's estate is, and 
 " where it lieth, what his debts are, and where 
 " he hath lived, and how he is become in debt, and 
 " whether any of his debt be paid; and this being 
 " returned, that execution be made as followeth : 
 " That all the estate of the defendant be liable to 
 " execution upon a judgment as it is upon a sta- 
 " tute ; and that in both cases lands entailed and 
 " copyholds be liable to the execution as well as 
 
 * Evans's Statutes, v.
 
 CIVIL LAW OF ENGLAND. 367 
 
 " any other lands ; and that the debts due to him 
 " also be liable to execution : and that the lands 
 " and goods that others have in trust for him -be 
 " liable to execution also ; and that the lands he 
 " hath for another's life, or any other way at his 
 "disposal."* Some of the evils here specified 
 are now redressed, but others remain without 
 any alleviation. No beneficial alteration of this 
 nature ought to be overlooked ; for the prompti^ 
 tude and energy with which the judgments, or- 
 ders, and decrees of courts of justice are carried 
 into execution are among the chief means by 
 which the bulk of the community judge of their 
 dignity and efficiency. 
 
 5. Courts of Law and Equity should be ena- 
 bled more effectually to punish the malversation 
 of their own officers. The power of punishing 
 those who are officers of Court, or practising be- 
 fore it, is an authority which may be abused, and 
 which it is neither easy nor agreeable for a judge 
 to exercise. At the same time it is indispensably 
 necessary for the preservation of that correctness 
 of conduct and strong sense of propriety which 
 it is so desirable to cherish among all practi- 
 tioners, that a power of inflicting punishment 
 upon them should be deposited with the judges^ 
 especially those of the supreme courts, and that 
 it should also be exercised whenever a case of 
 palpable misconduct demands its exertion. An 
 action of damages which is now competent to 
 
 * Shepherd's England's Balmc, p. 85.
 
 368 OX .THE PRESENT STATE;OF THE 
 
 the injured party, is inapplicable in half the cases 
 that occur, and even where it does apply is well 
 known to be completely nugatory. No effectual 
 check remains but that censorial authority which 
 every supreme judge ought to possess in cases of 
 malversation over his officers, and if this were 
 used with temper and resolution in the only way 
 in which it can be usefully exercised, which is by 
 depriving barristers, solicitors, and attornies of 
 their rank, and prohibiting them from ever prac- 
 tising in any court of justice again, the effect of 
 it would instantly be felt in every branch of the 
 judicial system. Recourse ought to be had 
 rarely and with great reluctance to this extreme 
 remedy, but there can be little doubt it would 
 have been for the benefit of suitors, and perhaps 
 also for that of practitioners themselves, if it 
 had been more freely used than it has ever been. 
 When barristers or solicitors do not scruple for 
 their client's benefit to avail themselves as far as 
 they can of the doctrines of the law and rules of 
 practice, however inconsistent with justices fo- 
 reign to their spirit and intention ; and avow 
 themselves warranted in their professional capa- 
 city to do that upon which in their private cha- 
 racters they would not venture, it is time to en- 
 .deavour to rekindle that sense of rectitude and 
 honour by which the legal profession has in this 
 country been so long animated and distinguished. 
 ; 6. In the establishment or extension of some 
 legal and equitable jurisdiction for the recovery of 
 small debts. Except in those large towns where
 
 CIVIL LAW OF ENGLAND. 3G9 
 
 courts of Conscience are established, and in a few 
 cases where jurisdiction is given to the county 
 magistrates by statute, there are at this moment 
 no Courts in England where sums below ten and 
 fifteen pounds can be recovered, without incurring 
 an expense which the debtor or creditor is totally 
 unable to bear. The consequence is, that the fraud 
 and dishonesty of a bold and wealthy man go un- 
 punished, and justice is almost wholly withheld 
 from those who stand peculiarly in need of its as- 
 sistance. Unless the fact were notorious, it could 
 hardly have been believed that so extraordinary a 
 deficiency would have been so long permitted. 
 Public attention has at last been directed towards 
 it, and the favour with which Lord Althorpe's bill 
 for the establishment of a new jurisdiction for the 
 recovery of small debts has been received, proves 
 the interest which it has at last excited. To what 
 sum of money the cognizance of such a Court 
 should reach, and whether the desired relief 
 should be administered by an entirely new juris- 
 diction, or the extension of one already existing* 
 requires much deliberation. The disadvantage 
 of multiplying jurisdictions and orders of judges 
 has been adverted to already, and one would 
 have thought that the quarterly sessions of the 
 magistrates in one or more places in each county, 
 and the courts of Conscience which are spread 
 all over the kingdom, might have rendered the es- 
 tablishment of a third jurisdiction unnecessary. 
 The court of Quarter Sessions is that on which 
 the additional burden would most naturally fall ; 
 
 u u
 
 370 
 
 and if by a simplification of the law, the duties 
 now discharged by county magistrates could be 
 so far diminished as to admit of this addition, 
 perhaps small debts might be recovered before 
 them at as little expense, with as little trouble 
 and delay, and as much to the satisfaction of the 
 parties as by that plan which is now under par- 
 liamentary consideration. The subject need not 
 be pursued further in this place, as it will again 
 come under consideration. 
 
 7. In enabling the judges in courts of Common 
 Law and Equity to compel witnesses to attend 
 and give evidence in foreign causes where a com- 
 mission for the examination of witnesses has been 
 issued into this country, and to certify to foreign 
 courts what the law of England is, upon those 
 points which arise in depending causes, and on 
 which they may desire their certificate. The 
 three parts of which the United Kingdom of Great 
 Britain and Ireland is composed, still stand in 
 matters of justice in the relation of foreigners to 
 one another; and no judge in England, Ireland, 
 or Scotland, has the power of compelling the 
 attendance of witnesses beyond his own jurisdic- 
 tion ; or of certifying to any judge of the other 
 two jurisdictions, what the law within his own 
 jurisdiction is. These are not only theoretical 
 defects, but serious practical evils, which the in- 
 creasing connection and intercourse between all 
 parts of the kingdom render every day more 
 sensible. " This is one of the cases," as Lord 
 Hardwicke said respecting England and Scotland
 
 CIVIL LAW OF ENGLAND. 371 
 
 Snearly a hundred years ago, " that shews the 
 *' union of the two kingdoms not yet complete ; 
 " and really as the union already made has 
 " caused a greater intercourse than when divided, 
 " and more frequent marriages and alliances, 
 " there happens to be such a communication of 
 " rights between the two kingdoms, as makes 
 " this separation of the laws and jurisdiction of 
 " the Court attended with great inconvenience 
 " and difficulty."* The Commissioners appointed 
 in 1823 to inquire into the courts of law in Scot- 
 land, have accordingly strongly recommended the 
 adoption of some measure for compelling wit- 
 nesses to attend and be examined in case of com- 
 missions in Scotch causes being issued into Eng- 
 land.f The 45 Geo. 3. c. 92, section 2, which 
 compels the attendance of witnesses in criminal 
 cases in any part of the united kingdom, favours 
 this suggestion, and if adopted, it ought to be 
 reciprocal between the whole of the three divi- 
 sions of which the kingdom consists. If the 
 judges of the supreme Courts of England, Ireland, 
 and Scotland, had also the power of sending 
 cases to each other when occasion required, and 
 certifying what their respective laws were, it 
 would be more satisfactory than to obtain the 
 requisite information by sending a case for the 
 opinion of one or two lawyers, and could in 
 
 * 2 Vesey's Reports, 385. 
 t P. 16, printed in 18*24. 
 B B 2
 
 372 ON THE PRESENT STATE OF THE 
 
 general be asked and granted without ceremony 
 or inconvenience. 
 
 There seems no reason why this courtesy with 
 respect to witnesses and certificates, which it 
 would be so useful to establish throughout the 
 three component parts of this kingdom, should 
 not be extended to all foreign states with whom 
 we are in relations of peace and amity. It is 
 true that witnesses so examined could not per- 
 haps be prosecuted for perjury ; but even though 
 they could not, the examination would be received 
 by the parties with extreme thankfulness, and be 
 productive of the best effects. The certificates 
 of the judges could only extend to cases coming 
 from a known court, and confirmed with every 
 mark of authenticity. The courtesy so shown 
 would often be very material to our subjects 
 suing abroad, and would call forth correspond- 
 ing good offices from foreign courts when our 
 judges wished to know the state of any foreign 
 law in return. Few measures would more 
 easily or powerfully contribute to the advance- 
 ment of international law and good will, than if 
 the tribunals of independent states were rendered 
 able as well as willing to aid and assist each other 
 in the attainment of their common object. In- 
 stead of evincing any disposition to encourage or 
 anticipate each other in so honourable and praise- 
 worthy a career, most of the governments of 
 Europe, mistaking their real interest as well as 
 dignity, have secretly gloried in the display of
 
 CIVIL LAW OF ENGLANp. 373 
 
 their own illiberality and indifference. It is time 
 that princes, statesmen, and judges, should ac- 
 knowledge and retrieve their error. The inter- 
 change of acts of kindness between governments 
 as well as private persons, is not more clearly 
 dictated by good feeling than by sound policy. 
 The law of nations even at this day remains in a 
 very rude and imperfect state. It is no doubt true 
 that looking back to the period when the soldier 
 enriched himself by the ransom of the captives 
 which he had made in war, and the prince seized 
 for his own use the property of every alien who 
 happened even in the time of peace to die within 
 his territory, the law of nations has made signal 
 progress in improvement. But it has greater 
 still to make, and its advancement would be mate- 
 rially promoted by the cordial and universal co- 
 operation of governments and judges to encourage 
 the discovery of truth and suppression of injustice. 
 
 SECTION III. 
 Of the simplification of the Law of Real Property. 
 
 THAT branch of the law of England which re- 
 lates to the acquisition, transmission, and incum- 
 brancing of real property, is perhaps of all sub- 
 jects within the range of art or science, that upon 
 which it is most difficult to reason accurately and 
 comprehensively. It is so extensive and repulsive,
 
 374 ON THE PRESENT STATE" OF THE 
 
 that it has scarcely ever been approached except 
 by those who conceived themselves practically in- 
 terested in proclaiming the excellence, lengthening 
 the forms, and multiplying the mysteries of the 
 system. To add to the difficulty of the investiga- 
 tion, its component parts are so connected and in- 
 terwoven, that none of them can be touched with- 
 out all the rest being in some degree affected. 
 Instead of endeavouring therefore, to subvert it 
 at once by any precipitate and fundamental altera- 
 tion, it would probably be a more successful and 
 less hazardous course, to pull down one by one 
 those parts of it which are inconvenient or use- 
 less; beginning with those of which the removal 
 may be effected with the greatest ease and safety. 
 By this method of proceeding, one improvement 
 would naturally make way for another, and con- 
 veyancing would gradually increase in conve- 
 nience as it gained in simplicity and beauty, by 
 the suppression of the uncouth and superfluous 
 devices by which it has been so long disfigured 
 and perplexed. In conformity with the course 
 which has been pursued when other parts of the 
 law have been under consideration, some improve- 
 ments in conveyancing may now be adverted to, 
 which it seems to be desirable to effectuate. 
 
 1. The first of these is, that the instruments 
 used in conveyancing should be drawn with greater 
 brevity and perspicuity. From the earliest exist- 
 ing allusion to a title by which "the field of Ephron, 
 " which was in Machpelah, which was before 
 " Mamre, the field, and the cave which was there-
 
 CIVIL LAW OF ENGLAND. 375 
 
 " in, and all the trees that were in the field, that 
 " were in all the borders round about, were made 
 " sure to Abraham for a possession," down to the 
 present day, the conveyances of all countries have 
 been needlessly verbose. Without inquiring from 
 what causes or by whose means this has been 
 brought about, the extent to which it is now car- 
 ried in England has almost become intolerable. 
 Legal instruments are so spun out by repetition 
 and circumlocution, that they are said to have 
 increased to nearly twice their former size within 
 the last five and twenty years. There is scarcely 
 any written instrument in which this defect is not 
 perceptible. The objects of a deed are so lost in 
 the sea of its provisoes, that it is by no means un- 
 common to prefix to it an abstract of its own con- 
 tents. The mischief caused by this profusion of 
 words is incalculable. It enhances expense, in- 
 creases delay, confuses the parties, and swells and 
 protracts every dispute which arises afterwards 
 concerning them. Each instrument has not only 
 become longer than it needs, but the law of pro- 
 perty most unnecessarily compels their multipli- 
 cation. A stronger instance of this cannot be 
 given than that afforded by a lease and release* 
 which is the most common form by which real 
 property is now conveyed to a purchaser. This, 
 method of conveyance is said to have been first 
 contrived by Serjeant Francis Moore at the request 
 of the Lord Norris, " to the end that some of his 
 " relations should not know what settlement he
 
 376 ON THE PRESENT STATE OF THE 
 
 " had made. r * It seems impossible to figure any 
 end which can be answered by rendering the exe- 
 cution both of a lease and release necessary at 
 the present time, unless it be to double the profit 
 of solicitors and conveyancers. It is in vain to 
 expect that the wordiness to which lawyers are so 
 prone should be easily or entirely corrected. But 
 though it cannot be totally repressed, the legisla- 
 ture might restrict both the length and number of 
 deeds and conveyances, and perhaps also devise 
 measures for their abbreviation. One of the 
 means which might.be suggested for this purpose 
 is an alteration in their for.m. The unbroken nar- 
 rative which runs through deeds and instruments 
 from beginning to end, is the most inconvenient 
 possible manner in which they could be drawn up. 
 Both clearness and succinctness would be con- 
 sulted by breaking down their contents into the 
 separate articles or heads of which they consisted, 
 and prefixing a numerical figure to each. These 
 different heads or articles would then stand sepa- 
 rate and distinct; the breaks between them would 
 promote perspicuity; and the numerals prefixed 
 to them would render reference to them both sure 
 and easy. It may also be fit for consideration whe- 
 ther it be not inexpedient that the preparation of 
 legal deeds or papers of any description should be 
 paid for according to their length. The mere quan- 
 tity of work done is the rudest of all ways of esti- 
 
 * Harrington's Observations on the Statutes, p. 133.
 
 CIVIL LAW OF ENGLAND. 377 
 
 mating the remuneration to which it is entitled, as 
 the time and skill which has been bestowed upon 
 it is usually in an exactly inverse proportion. No 
 man ought to receive a greater recompense than 
 is suited to the degree and quantity of the skill 
 and labour employed, and he ought not to receive 
 a smaller whatever may be the extent of paper 
 which that labour may have covered. Whether 
 the establishment of any kind of quantum meruit be 
 practicable or not, its impracticability can be re- 
 ceived at present by none who do not desire to be- 
 lieve it. In addition to these suggestions, there 
 seems no reason why forms for the most common 
 deeds and instruments might not be carefully pre- 
 pared and published by the legislature, and con- 
 formity to them constantly and vigorously en- 
 forced. Scarcely an act of parliament is passed 
 respecting any public matter, in which forms are 
 not prescribed by public authority, and convey- 
 ancing is quite as fit a subject for them as any 
 other. If by this expedient; by a different man- 
 ner of remunerating those by whom deeds and in- 
 struments are drawn ; or by any other means, the 
 superfluity of words which is found in them could 
 be in any moderate degree retrenched, one of the 
 most obvious, vexatious, and universal grievances 
 in conveyancing would be effectually corrected. 
 
 2. The enfranchisement of copyholds is another 
 step by which the law of real property would be 
 decidedly improved. It is not necessary to enter 
 into any detail of the peculiarities by which that 
 species of property is distinguished; the fines and
 
 378 ON THE PRESENT STATE OF THE 
 
 forfeitures to which it is subject ; nor the incon- 
 sistencies and absurdities to which the continu- 
 ance of it has given occasion. Nothing can ex- 
 ceed the cogency of the observations with which 
 Mr. Watkins has summed up the two of the last 
 elaborate volumes he has devoted exclusively to 
 this subject. " Upon the whole, therefore, the 
 " law of copyholds seems founded upon princi- 
 " pies rational and just in their origin, and per- 
 " fectly adapted to the manners of the age and 
 " people among whom they were established. 
 " The right of the landlord to his fines and his 
 " forfeitures,^ his privileges and emoluments, re- 
 " mains indisputably good. As copyholds were 
 " at the will of the lord, it belonged to the lord to 
 " affix the terms of his gift. The ancestor ac- 
 " cordingly accepted the gift, and was thankful : 
 " and the heir who now enjoys ought not to 
 " murmur because he has not more than his fore- 
 " fathers, and but for whom he would have had 
 " nothing to hold ; and more especially, as the 
 " alterations that a change of manners has intro- 
 " duced, have been uniformly for his benefit. The 
 " courts have established his right to succeed ; 
 " have established his right to alien. They have 
 " even relieved against forfeitures, and restricted 
 " the lord in his fines. The purchaser has no bet- 
 " ter cause to complain : he knew, or ought to 
 ' have known, the terms to which the lands were 
 " subjected. He purchased with his eyes open; 
 " and if he has made a bad bargain, it can only 
 " be the consequence of his own indiscretion. If
 
 CIVIL LAW OF ENGLAND. 379 
 
 " the lands are less valuable than freehold, he has 
 " paid a consideration for them proportionably 
 " less. 
 
 " But on the other hand it must be evident, 
 " that though the principles on which the doc- 
 " trine of copyholds is founded, were originally 
 " wise in themselves, yet that many of them are 
 " now obsolete, and many forgotten. The neces- 
 " sity and even propriety of their continuance 
 " has ceased to exist. We have now no villeins, 
 " thank God ; and the laws which could relate 
 " only to villeins ought therefore to be swept 
 " away. But the progress of manners is always 
 " gradual, and often imperceptible ; and hence a 
 " system is frequently continued when its princi- 
 " pies are disowned. The wisdom and expediency 
 " of a general law, to which all landed property 
 " should be alike subject, and the confusion and 
 " manifest evils which are inevitably attendant 
 " on a diversity of local customs, must be appa- 
 " rent to every one. A nation can scarcely expe- 
 " rience a greater curse than a complicated and 
 " discordant code ; for, according to the remark 
 " of an ingenious and elegant writer, ' so soon as 
 "justice becomes a science, so soon does injustice be- 
 " come a trade.' The more varied and complex 
 " the laws, the less they must necessarily be 
 " understood ; and the less they are understood, 
 " the more will the artless and innocent be placed 
 " in the power of the artful and rapacious. As 
 " we have manifestly outlived the principles of 
 " copyhold law, why should that law be con-
 
 380 *ON THE PRESENT STATE OF THE 
 
 " tinued ? The happy consequences of the statute 
 " of the 12th of Charles the Second which abo- 
 " lished so many feudal incidents, and turned the 
 " generality of tenures into that of common so- 
 " cage, hold out to us the strongest encourage- 
 " meat to reduce our laws of real property still 
 " more to the standard of wisdom, by reducing 
 " them to the spirit and manners of the times, 
 " Why must we be perpetually appealing to the 
 " fool's idol of precedent? Why be dissatisfied 
 " with common sense? May not what was just 
 " at one period become under other circumstances 
 " unjust? Or will truth be no longer truth, be- 
 " cause our forefathers happened to blunder? Or, 
 " finally, may not that which was wise in the in- 
 " fancy of a state become inapplicable when men 
 "cease to be rude ? There are many difficulties, 
 " it is true, in the way of a general enfranchise- 
 " ment : but what is there of general importance 
 " that can be effected without having difficulties to 
 " encounter? Without amelioration we must de- 
 " generate. A system of jurisprudence cannot 
 " remain perpetually the same, while the man- 
 " ners of a nation change. The principles which 
 " originated in barbarism, cannot meet the wants 
 " of an improved and improving age. The man- 
 " ners of a nation must be stationary, or stationary 
 " laws cannot long regulate its conduct. The 
 " principles of nature are fixed and immutable, 
 " and laws founded on those principles will always 
 " apply; but laws founded on arbitrary imposi- 
 " tions, or the peculiar manners or necessities
 
 CIVIL LAW OF ENGLAND. 381 
 
 " of a particular age, should not be permitted to 
 " shoulder out common sense from society, or 
 " to incumber the conduct of persons to whom 
 " they cannot in reason relate. If every thing 
 " desirable cannot be effected, it does not fol- 
 " low that we might therefore do nothing. If 
 " an immediate and universal enfranchisement 
 " of copyholds cannot be accomplished, an en- 
 " franchisement may be effected partially and 
 " by degrees. The more we advance towards 
 " perfection, the number of evils which we leave 
 " will be less. Thus an act may be passed, 
 " obliging every landlord seized in fee simple to 
 " enfranchise, on so many years average of the 
 " seignorial emoluments. The average may be 
 " ascertained by commissioners on a jury. Tenants 
 " in tail may also be enabled and compelled to en- 
 *' franchise, as enfranchisement would be so evi- 
 " dently beneficial to the nation at large. A tenant 
 " in tail may now by certain means alien the manor 
 " in fee : what impropriety then would there be 
 " in enabling him to convey the freehold of a few 
 " copyhold tenements by some solemn deed ? And 
 " the power of enfranchisement might be ex- 
 " tended as circumstances would admit. The 
 " prejudices of the ignorant, and the opposition 
 " and arts of the interested must be expected and 
 " met ; but we should meet them with manly 
 " firmness, while conscious of the integrity of our 
 " views. We should recollect that we cannot 
 " reason from a matter of fact to a matter of 
 " right ; and that it does not follow of necessity
 
 382 ON THE PRESENT STATE OF THE 
 
 " that because absurdities or inconveniences exist, 
 " they therefore ought to be cherished. There 
 " cannot be a more certain cause of destruction 
 " than the accumulation of what is absurd." 
 
 To these powerful observations I shall only 
 add, that as far as the pecuniary interests of land- 
 holders is concerned, the enfranchisement of copy- 
 holders would be a decidedly beneficial measure. 
 Those who draw only from 100/. to 200/. a year 
 from the copyholders, find the emoluments little 
 more than sufficient to cover the charges inci- 
 dental to the maintenance of the baron's court; 
 and in all cases more money is spent uselessly 
 both to landlords and vassals in this way than in 
 any other formalities which the law requires. To 
 lords therefore it would in every instance bring 
 an accession of fortune, and to copyholders great 
 and grateful relief. They would be for ever freed 
 from the endless interference attendances and 
 exactions to which they are now obliged to sub- 
 mit, and which under the mildest form and ma- 
 nagement continue so galling and inconvenient, 
 that there are few copyholders who would not 
 gladly commute them for an equivalent far be- 
 yond their real value. Since the enactment of 
 12 Charles 2. c. 2. which put an end to feudal 
 holdings and their appendages, it might have been 
 expected that copyholders would long ago have 
 been suffered to participate in the blessings which 
 it brought, as they stand in precisely the same re- 
 lation to the lord of the manor that the lord of the 
 manor before the passing of that act did to the king;
 
 CIVIL LAW OF ENGLAND. 383 
 
 nd when the lord's own feudal bondage was re- 
 mitted, one does not see upon what principle of jus- 
 tice and reason he should refuse, upon tender of a 
 fair equivalent, to remit that which his own vas- 
 sals owed to him. Such a measure would be as 
 advantageous to the country at large as to the 
 private parties more immediately interested. It 
 would admit copyholders to the elective fran- 
 chise, their exclusion from which is the greatest 
 grievance of which they now complain ; it would 
 preclude all future disputes about timber, mines, 
 game, and heriots, which do more to destroy 
 peace and good neighbourhood than all other 
 causes of difference put together; and would pro- 
 mote the accumulation and investment of capital, 
 by giving every man the absolute and unlimited 
 enjoyment of property which he already felt to 
 be substantially his own. The 55 Geo. 3. c. 192. 
 which enabled a copyholder to dispose of copy- 
 hold property, though not surrendered to the use 
 of his will, stopped much of that .litigation which 
 copyholds had previously occasioned, and it is to 
 be hoped that many years will not elapse before 
 their complete enfranchisement will close the 
 door upon all the rest. 
 
 The same reasoning which applies to copyholds 
 in England applies with equal force to joint ten- 
 ants, as well as to leaseholds perpetually renew- 
 able, in Ireland, and in both cases it is time to 
 destroy as many links as possible of that chain of 
 dependence which is found so inconvenient wher- 
 ever it is suffered to exist.
 
 384 ON THE PRESENT STATE OF THE 
 
 3. By the abolition of Seisin and substitution of 
 Registration. Blackstone describes livery of seisin 
 to have " perpetuated among the tenants of the 
 " homage the aera of the new acquisition at a 
 " time when the art of printing was very little 
 " known, and therefore the evidence of property 
 " was reposed in the neighbourhood, who in case 
 " of a disputed title were called upon to decide 
 " the difference, not only according to external 
 " proofs produced by the parties litigant, but also 
 " by the internal testimony of their own private 
 " knowledge."* The practical utility of such a 
 solemnity at the introduction of the feudal system 
 we are apt to forget. When the population of a 
 country is scattered and unlearned, and the abun- 
 dant leisure which they enjoy is chiefly employed 
 in witnessing or recounting the incidents which 
 occur in their neighbourhood, any ceremony 
 which draws their attention to any particular 
 occurrence, is the best method of giving pub- 
 licity to it at the time, and insuring the recol- 
 lection of it afterwards. Seisin therefore was 
 an admirable institution in its day, but should 
 have ceased with the state of society to which it 
 owed its origin. A severe blow was given to it 
 by 27 Hen. 8. c. 10. commonly called the Statute 
 of Uses, by which a man, seised of lands, cove- 
 nants in consideration of blood or marriage that 
 he will " stand seised of the same to the use of" his 
 child, wife, or kinsman, for life, in tail, or in fee. 
 " Here the statute," says Blackstone, "executes 
 
 * Commentaries, v. ii. p. 53.
 
 CIVIL LAW OF ENGLAND. 385 
 
 "at once the estate ; for the party intending to be 
 " benefited, having thus acquired the use, is thereby 
 " put at once into corporal possession of the land 
 "without ever seeing it, by a kind of parliamen- 
 " tary magic. But this conveyance can only ope- 
 " rate when made upon such weighty and inter- 
 " esting considerations as those of blood or mar- 
 " riage."* These weighty and interesting consi- 
 derations are however among those which are of 
 most frequent occurrence and by which the great- 
 est quantity of real property is conveyed; and if 
 seisin is dispensed with in that instance, and also 
 in the case of property conveyed, by levying a 
 fine,t it easily might and ought to have been so 
 in every other. Its continuance is as inappro- 
 priate now as its establishment was at first judi- 
 cious. The subjects of this country are in the 
 present day a busy and a reading, not an idle and 
 a story-telling people; and Registration of the 
 written conveyance of real property forms at 
 this day a confirmation of titles as natural and 
 even more efficient than Seisin was in the days of 
 our illiterate and turbulent progenitors. 
 
 Public registers of births, deaths and marriages 
 have long been established with different degrees 
 of accuracy in almost every state in Europe. 
 Registers affecting land have also been esta- 
 blished in Spain,J Holland, Scotland, and France. 
 Registration is said to have been known in Eng- 
 
 * Commentaries, v. ii. p. 338. 
 
 t Id. p. 348. 
 
 | 3 P. Williams, p. 364. 
 
 c c
 
 386 ON THE PRESENT STATE OF THE 
 
 land even prior to the Conquest, and grants to 
 lands to have been then inrolled in the shire book 
 in public shire-mote, after proclamation made for 
 any to come in who could shew a preferable title 
 to the lands conveyed.* This point has been sup- 
 posed not to be satisfactorily proved ; yet in the 
 same passage in which its accuracy is questioned, 
 the account which is given from Hickes's Thesaurus 
 of the transaction which took place between Thur- 
 kil and Leofleda, at the conclusion of which " Thur- 
 " kil rode to the church of St. Ethelbert with the 
 " leave and witness of all the people, and had the 
 " same inserted in a book in the church,"! proves 
 the early existence of a very effectual kind of re- 
 gistration, as well as a perfect comprehension of 
 its value. No steps seem to have been taken to- 
 wards its regular introduction till the 27 Hen. 8. 
 c. 16. which directed the inrolment of transferen- 
 ces of real property made by bargain and sale, 
 which act Lord Hardwicke alleges to have had the 
 same object with the registration act of 7 Anne, 
 c. 20.J Though no registration was till then 
 actually established, it had been repeatedly pro- 
 posed at antecedent periods. In 1652 or 1653 a 
 bill was proposed for the establishment of county 
 registers, as appears by a pamphlet which was 
 published in 1653. The same or a similar mea- 
 
 * Gurdon on Courts-Baron, p. 589. 
 t Hallam's Hist, of the Middle Ages, v. ii. p. 141. 1st Ed. 
 J 1 Vesey's Rep . 66. 
 
 Reasons against the Bill for the Establishment of County 
 Registers, p. 9.
 
 CIVIL LAW OF ENGLAND: 387 
 
 sure was warmly recommended by Shepherd a 
 few years afterwards, and the provisions then 
 offered by him were to the following effect. 
 " It is objected, that there is no security for 
 " men's lands or possessions ; they can never 
 " say they are their own ; but they may be 
 " molested by some former title to or incum- 
 " brances upon the land. It is offered to be 
 " considered for securing all men's present 
 " titles to land, what an act of limitation to this 
 " purpose may do. That for all such as shall 
 " within a certain time enter their land, title, and 
 .". estate in it in the county registry, having such 
 " title or estate, or at least a colourable title and 
 " estate, that if any person that hath or claimeth 
 " any estate or interest therein, or right or title 
 '* thereunto, or charge or incumbrance thereupon, 
 "if they being free from impediment of coverture, 
 " &c. enter not their claim nor bring their action 
 " within such a time, that they may be perpetu- 
 " ally barred. It is offered further for the secu- 
 " rity of titles and estates that every man that will 
 " in the conveyance of land and making of their 
 " assurances, may take them by fine or deed in- 
 " rolled or not inrolled as the law is, so as there 
 " be a transcript of the conveyance certified into 
 " the registry, otherwise all conveyances and as- 
 " surances of lands or profits out of it whatsoever, 
 " whereof there shall be no mention in the county 
 " registry shall be as to him that shall afterward 
 " purchase the same land or any profit out of it, 
 " adjudged fraudulent and void. And that there 
 
 c c 2
 
 388 ON'THE PRESENT STATE OF THE 
 
 " be a county registry in every county, and one 
 " or more houses fitted for it, and officers ap- 
 " pointed to be chosen : the times set for the of- 
 " fleers' attendance, that all these officers being 
 " desired shall forthwith enter and indorse the 
 " deeds according to the form set down."* The 
 adoption of the same plan was subsequently 
 pressed by another writer after the restoration of 
 Charles II., who proposed to remove the two main 
 objections to it arising from its chargeableness 
 and publicity, " by the manner of contriving such 
 " a registry, for by extracting only the principal 
 " heads of such deeds the secrecy of the concern 
 " may be secured, and the charge likewise avoid- 
 " ed, viz. by a memorandum only that a deed was 
 " executed, bearing date such a day, &c. con- 
 " cerning such lands, (naming the parcels as in 
 " the deed,) in the parish and county, &c. par- 
 " ties to the deed, such, &c. witnesses, such and 
 " such, &c. or to this effect."! It is also men- 
 tioned by the biographer of Lord Keeper North 
 that this eminent judge " was extremely desirous 
 " that a register of titles to land should be set- 
 " tied, and he worked seriously upon it. There 
 " were frequent attempts in parliament to esta- 
 " blish one, but none ever was presented to them 
 " tolerably digested, and so they came to no- 
 " thing.";): At last registers were established by 
 act of parliament, about half a century ago, in 
 
 * Shepherd's England's Balme. London, 1657- p. 115, 117, 121. 
 f Reasons for a Registry. London, Harper, 1678. 
 J North's Life of Lord Keeper North, p. 109.
 
 CIVIL LAW OF ENGLAND. 389 
 
 Yorkshire and Middlesex, the two most populous 
 and wealthy counties of England, where they have 
 been placed nearly on the footing pointed out in 
 the plan immediately above mentioned, and to 
 these counties alone the introduction of them has 
 hitherto been restricted. 
 
 The object of the preceding narrative is to shew, 
 that the institution of a general system of Regis- 
 tration for the conveyance and mortgage of real 
 property, has at various periods formed the sub- 
 ject of frequent deliberation as well as of legisla- 
 tive enactment in this country. It does not appear 
 however to have by any means received the atten- 
 tion it deserves, or improvement of which it is 
 susceptible. Perhaps no means could be made 
 to conduce so effectually to the simplification and 
 security of the conveyance of real property, as 
 that of public registers. Whether registration 
 should consist merely in an entry of the dates and 
 purposes of the instruments and parties and wit- 
 nesses to it, or in the inrolment of the whole of the 
 deed itself, has led to considerable difference of 
 opinion. An inrolment is alleged to be expensive 
 and to cause an unnecessary disclosure of the cir- 
 cumstances of the parties.* Little practical incon- 
 venience would be likely to result from all the 
 publicity which inrolment would occasion. In 
 so busy a country as this, people are too much 
 occupied with their own concerns to interfere 
 needlessly with those of their neighbours. No 
 injury has resulted from the facility with which 
 
 * Sugden on Purchases, p. 603 and 604. 5th Ed.
 
 390 ON THE PRESENT STATE OF THE 
 
 every person in the country may get a copy of 
 any will which has been proved in Doctors' Com- 
 mons, and it may fairly be questioned whether 
 any disclosure would really be occasioned, ex- 
 cept in cases where it is desirable that no con- 
 cealment should be practicable. The form and 
 regulations of a registry however is a matter of 
 subordinate importance. If it is only allowed 
 that effectual registration of some sort or other 
 should exist, no serious difficulties could be en- 
 countered in arranging its minute details. The 
 expense attending a well regulated register would 
 no doubt be considerable, but it would be amply 
 repaid, if it in any degree fulfilled the purposes of 
 its institution. The inrolment of the entire in- 
 struments would be attended with several very 
 important benefits. If the originals were lost, 
 the possessors of them abroad, or several parties 
 had a concurrent right to their inspection or pro- 
 duction, all of them would have constant recourse 
 to the registry, and the possibility of the fabrica- 
 tion of any deed to the prejudice of prior incum- 
 brances or parties interested would become im- 
 possible. But on this subject, and on the compa- 
 rative merits of different plans of registration, it 
 would be expedient to examine the manner in 
 which they are now kept in Ireland, France, and 
 Scotland, in all of which countries, registration is 
 established. Some of the most experienced offi- 
 cers belonging to the Record Department in the 
 Tower, and Mr. Thompson who has the superin- 
 tendance of the Register House at Edinburgh, or
 
 CIVIL LAW OF ENGLAND. 391 
 
 some of the other officers of that establishment, 
 would also be able to give most valuable infor- 
 mation on the merits of the different sorts of re- 
 gistration, and improvements of which it is 
 capable. As land-surveying is carried to so much 
 greater perfection now than in times past, it 
 might be fit also to consider whether plans of the 
 property sold or incumbered, together with an 
 outline of the conterminous tenements, might 
 not be made to save a great deal both of expence 
 and writing. That it should ever be possible 
 to transfer or encumber real property as easily 
 as government stock standing in the books of 
 the Bank of England, is not to be expected, but 
 there can be little doubt that by means of a well 
 arranged register, plans, indexes, and calendars, 
 exhibiting its situation, extent, and burdens by 
 which it is affected, it might be conveyed at a 
 fifth part of the delay, trouble, and expense with 
 which it is now attended. 
 
 4. By laying down some legislative enactments 
 respecting the transmission of real property by 
 operation of law or the will of the party. If it should 
 be thought practicable to adopt all or any of the 
 measures which have been adverted to for the 
 abbreviation of deeds, enfranchisement of copy- 
 holds, abolition of seisin, and introduction of re- 
 gistration in its stead, these changes of the law 
 would not only be important in themselves, but 
 would pave the way for still further and greater 
 improvements. Among these might be reckoned 
 the adoption of a few general and perspicuous
 
 ON THE PRESENT STATE OF THE 
 
 rules determining the manner in which real pro- 
 perty should descend by law when not affected 
 by any act of the last owner, and the power over 
 its descent which he should be allowed to exer- 
 cise by deed or will. 
 
 Respecting the descent of real property when 
 the owner dies intestate, little requires to be said. 
 The rules now established are sufficiently plain, 
 and the alterations in them that could be suggested 
 are neither numerous nor of prime importance. 
 It has been already mentioned that there is an 
 apparent hardship in preventing the half blood in 
 all cases from succeeding to the whole, and the 
 father from succeeding to the real property of his 
 own son. It would also be desirable that the 
 rules of descent should be the same all over the 
 kingdom. The law of Gavelkind in Kent which 
 divides the property equally among all the chil- 
 dren; and Borough- English, which in a few spots 
 gives it exclusively to the youngest, are peculiari- 
 ties which it may have been desirable to respect 
 in former times, but which there is no sound 
 reason for enduring any longer. They are unjus- 
 tifiable in theory, and attended with no beneficial 
 effects in practice. 
 
 The degree to which private persons are per- 
 mitted to govern the transmission and enjoyment 
 of real property by writings which are to take ef- 
 fect during their lifetime or after their death, con- 
 stitutes in England the most material part of the 
 law of real property, and it is of great moment to 
 the peace and prosperity both of individuals and
 
 CIVIL LAW OF ENGLAND. 393 
 
 the state, that those parts of the law should be as 
 strictly defined as possible, which relate either to 
 the extent of the power which is given or the 
 manner in which it may be exercised. 
 
 So far as the manner in which the power which 
 private persons are permitted to exercise over real 
 property by deed or will, is concerned, there are 
 a few general maxims by the neglect of which 
 this branch of the law of England seems to be 
 greatly and unnecessarily perplexed. In the first 
 place, why should not all that is permitted to be 
 done by will be done equally by deed? If any 
 distinction were to be made between them, one 
 would naturally expect that a deed, as rather the 
 more solemn instrument of the two, should have 
 the widest sphere of operation. The case is exactly 
 the reverse. By means of uses or an Executor's 
 devise contained in a will, a fee may be created upon 
 a fee, which in the instance of a deed the Common 
 Law absolutely prohibits. Here then is one 
 source of intricacy in the law of real property, 
 both unfailing and abundant. In the next place 
 deeds and wills should as far as the nature of the 
 case will admit, be executed, proved, cancelled, 
 and interpreted in courts of justice, in the same 
 manner. In every one of these particulars the 
 law of England is incumbered and disfigured by 
 endless distinctions and anomalies, without any 
 assignable cause which will bear investigation. 
 In the execution of a deed, the signature of the 
 maker is not necessary at all, though sealing and 
 delivery are : but in the execution of wills of real
 
 394 ON THE PRESENT STATE OF THE 
 
 property, neither sealing nor delivery are neces- 
 sary, but the signature of the testator is. There 
 seems no reason for this difference, and still less 
 for requiring these ceremonies when a single acre 
 of land is conveyed by deed or will, while person- 
 al property to the amount of two or three hundred 
 thousand pounds may be conveyed by a will 
 written in the testator's own hand, without being 
 either signed, sealed, delivered, or attested. With 
 respect to the proof of deeds and wills of real estate, 
 there are considerable differences between the 
 practice of courts of Common Law and courts of 
 Equity, and differences also between the proof of 
 wills of real estate at Common Law, and that evi- 
 dence which is required before effect is given 
 to them in Equity, and wills of personal estate 
 which are proved in the Ecclesiastical Courts. 
 As courts of Equity have now conferred upon 
 personal property many of the characters of real, 
 and particularly by rendering it capable of being 
 entailed to the same extent, it ought in reason to 
 be disposed of by the same solemnities, and these 
 solemnities to be authenticated in the same man- 
 ner. It might also be expedient to make those 
 rules which relate to the revocation and cancelling 
 of deeds and wills apply equally to both sorts of 
 instruments. At present these rules are neither 
 clear nor uniform, and multitudes of suits have 
 been brought into courts of Law and Equity in 
 consequence. In particular, the presumption 
 that the will of a testator is revoked when he 
 afterwards marries" and has children, appears
 
 CIVIL LAW OF ENGLAND. 395 
 
 to be a doctrine among the most irreconcileable 
 to general principles, of any to be found among 
 the records of our courts of justice. By means 
 of this presumption courts of justice arrogate 
 the power of making wills for men under cer- 
 tain circumstances, which in express terms they 
 abjure the power of doing under any. There 
 can be no doubt that unprovided wives and child- 
 ren induced them to adopt the course which they 
 have followed, but still it seems upon general 
 principles of reason to have been erroneous. If 
 it should be deemed advisable to enable courts of 
 justice to make a provision for the near relatives of 
 persons of substance who have from forgetfulness, 
 or motives of resentment, been left destitute, it 
 ought to be expressly conferred by the legislature ; 
 but till that is done, it will be difficult to shew 
 upon what ground they refuse to carry into exe- 
 cution those provisions respecting a testator's 
 property, which the law has enabled him to make, 
 and which he has regularly exercised. The rules 
 by which courts of justice are governed in the in- 
 terpretation of deeds and wills are fully of as much 
 importance as any branch of the law relating to 
 them, and perhaps there is no part of our jurispru- 
 dence, where judicious legislative interference 
 would be productive of more decided improve- 
 ment. Although the decisions at Common Law 
 or in Equity are frequently less irreconcileable 
 with each other than a cursory perusal of them 
 seems to indicate; on this point the unfavoura-
 
 396 
 
 bleness of the opinion which is formed upon first 
 impressions will not be diminished by more fami- 
 liar acquaintance. The cases are so numerous 
 that they defy quotation, and no ingenuity can 
 shew the reasoning and decrees of the Judges to 
 have been either rational or consistent. A few 
 general inferences may be safely deduced from 
 them, as for example, that wills are generally, 
 though not invariably construed according to the 
 testator's intention ; that deeds or other instru- 
 ments of a fiduciary nature are construed with 
 considerably greater rigour ; and that all deeds 
 which are not fiduciary are construed according 
 to the strict legal import of the words and phrases 
 which the parties to the deed have thought proper 
 to employ. But beyond this, little further cer- 
 tainty is to be obtained. Though deeds are al- 
 ways declared to be construed strictly, yet Hobart 
 has said respecting the Common Law judges, 
 " And here first I do exceedingly commend the 
 " Judges that are curious and almost subtile, 
 " astuti which is the word used in the Proverbs of 
 " Solomon in a good sense when it is to a good 
 " end, to invent reasons and means, to make 
 " acts according to the just intents of the parties, 
 " and to avoid wrong and injury, which by rigid 
 " rules might be wrought out of the act :"* and 
 in another case respecting the construction of 
 certain deeds, Lord Hardwicke talks of the 
 " prodigious latitude" which the precedents and 
 
 * Hobart's Rep. p. 277.
 
 CIVIL LAW OF ENGLAND. 397 
 
 authorities of the court of Chancery allow.* On 
 meeting with such expressions as these, it is im- 
 possible to read them or reflect upon them without 
 regret. Why should judges be reduced to the 
 necessity of using either prodigious latitude or cun- 
 ning, or to become unjust in their interpretation 
 of words in order to attain justice in the sub- 
 stance of their judgments ? It is a well known 
 and admired observation of Lord Hardwicke's, 
 that there is no magic in words, and yet as the law 
 stands now with respect to their interpretation, 
 one perceives every where the most undeniable 
 proofs of its unseen and mysterious influence. 
 But why should not the whole of this at once 
 ludicrous and potent incantation be dissolved, 
 and writings of every kind be interpreted ac- 
 cording to the intention of the parties? It would 
 be desirable to be distinctly informed what in- 
 convenience or just ground of alarm would re- 
 sult from such an arrangement, or whether they 
 would be in any degree comparable to the mul- 
 tiplied mistakes and law-suits which spring 
 from the law as it is now established. If wills 
 are explained according to the intention of the 
 testator, why should not every other written in- 
 strument be explained in the same manner ? No 
 instruments are more important than wills, none 
 more complex, and none by which larger property 
 both real and personal is disposed of. If either 
 in deeds or wills, a word or phrase is used which 
 
 * 2 Ves. Rep. p. 210.
 
 398 ON THE PRESENT STATE OF THE 
 
 has a technical signification, unless it appears to 
 be the intention of the parties to use it in any 
 other than its technical signification, let that 
 technical signification be applied to it; but if it 
 unequivocally appears to be the intention of the 
 person who uses it, that its signification should 
 be different, to insist that the technical signification 
 should prevail over that which the context shews 
 to be manifestly intended, is an abuse of language 
 which neither time nor precedent can sanctify. 
 Unless the legislature permits a man to express 
 his own meaning in his own words, it seems bound 
 to prescribe a precise form of words for him. There 
 seems no intermediate course for it to follow. 
 The difference between ordinary language and 
 the language of the law is frequently so slight in 
 appearance, and so great in reality, that to per- 
 mit a private person to use his own words, and 
 yet attach to them the technical legal signification, 
 is a species of deception which the legislature 
 ought not to tolerate. The simplest and wisest 
 policy seems to be, to interpret every written in- 
 strument, according to the plain intent and mean- 
 ing which they bear ; but if this is not approved 
 of, the next best is to publish a set of forms and 
 precedents, the slightest departure from which 
 should deprive all writings of all effect or validity. 
 The extent of the power which the owners of 
 real property are by law permitted to use over the 
 transmission and enjoyment of it, is still more im- 
 portant than the manner in which that power is 
 exercised. If the owner of real property disposes
 
 CIVIL LAW OF ENGLAND. 399 
 
 of it absolutely, or with the reservation of a par- 
 tial or temporary interest, it seldom happens 
 that much embarrassment is occasioned. It is 
 the introduction of trusts and entails in whatever 
 form or manner they are created which has per- 
 plexed this branch of the law in most countries 
 in Europe, and in that of England rendered it 
 almost incomprehensible. The desire of prolong- 
 ing or perpetuating their possessions in their name 
 and family, by means of entails, trusts, uses, 
 substitutions, or by whatever other name they 
 may be called, cleaves so close to all mankind, 
 that it is sure to be renewed as often as the secu- 
 rity of government or state of the law afford an 
 opportunity. Traces of it are perceptible in 
 records of the most remote antiquity. The first 
 epoch, however, in the civilized world, at which 
 trusts were regularly introduced, was under 
 Augustus. Their spread appears to have been 
 so rapid, and the consequences so inconvenient, 
 that the Senatusconsultum Trebellianum et Pegasi- 
 anum were made in order to invest the person for 
 whom the trust was created with all the qualities 
 and privileges of a regularly appointed heir. 
 Though perpetuities could not be attained by the 
 means originally employed, others were afterwards 
 devised for the same purpose, precisely as trusts 
 in equity in England defeated the statute of uses 
 passed in the time of Henry VIII. Accordingly 
 in the 159th Novel, we are presented with a speci- 
 men of a bequest precisely similar in all material 
 points with the entails which are at this day found
 
 400 ON THE PRESENT STATE OF THE 
 
 subsisting in almost every part of Europe. Within 
 moderate limits, entails are prejudicial to no form 
 of government whatever, and in states where a 
 monarchical form of government is adopted, they 
 are conducive to its stability and prosperity. 
 But they require to be carefully restrained both 
 with respect to their nature and duration. When 
 entails are permitted to be carred to an extrava- 
 gant length, they are productive of every imagin- 
 able evil. " Deeds and wills," Lord Dyer has 
 beautifully remarked, " are the laws which pri- 
 " vate men are allowed to make ;"* and they 
 should neither be suffered to become complicated 
 nor capricious. Besides the injury they do to 
 the law, they produce exactly the same mis- 
 chievous effects upon the higher classes, that poor 
 rates do upon the lower. They make the diffe- 
 rent members of the same family independent of 
 one another ; encourage dissipation both among 
 parents and children, because they know that 
 their respective provisions will not be affected, 
 whether their conduct be weak or wicked : 
 and either through mistake or oversight, they 
 often disappoint those very persons whom the 
 creator of the estate tail particularly intended to 
 favour. Entails of excessive duration have accord- 
 ingly met with the disapprobation of all persons 
 of sound and enlightened understanding. The ob- 
 servations of Muratori on this point are particularly 
 forcible and appropriate : " Che vuol chiarirsi," are 
 
 * Vernon's Rep. vol. ii. p. 337
 
 CIVIL LAW OF ENGLAND. 401 
 
 the words in which he begins the chapter on sub- 
 stitutions, " della superbia umana, non ha che da 
 " leggere i vari testament], che tutti dl si fanno. 
 " Quivi i testatori non solamente trasmettono la 
 " roba loro a qualche erede, ma vogliono ch' essa 
 " si conservi, e passi ad altri mani, sustituendo 
 " al primo erede altre persone determinate, sieno 
 " discendenti, o trasversali, agnati o cognati, o 
 " pure estranei, secondo la predilezion loro, e 
 " vincolandola in maniera, che tutti i chiamati ne 
 " godano piu tosto 1' usufrutto, che il vero e libero 
 " dominio. Chiamo io superbia quella di una 
 " creatura destinata da Dio a vivere per pochi 
 " anni sopra la terra, e a goder di que' beni, che 
 " o la fortuna o Tindustria ha portato in sua casa, 
 " che voglia anche far da padrone d' essa, giacche 
 " non se la pu6 portar dietro, non solamente al- 
 " lorch spira 1'ultimo fiato, ma per moltissimi 
 " anni anche dopo la morte sua. E divien piu 
 " questa ridicola, se si tratta di poche sostanze, 
 " o se si vuol tramandare una tal disposizione 
 " sino a i secoli a venire, e molto piu se in injinito, 
 " come cantano alcune ultime volonta. Ben fu 
 " detto, che 1' uomo e 1' animale della superbia. 
 " Ecco come egli vuol commandare anche dopo 
 " morte, anche per secoli et secoli : quando egli 
 " e sotterra. Ma verran si verranno le con- 
 " fusioni delle guerre e delle pestilenze, verranno 
 " le dispense de' principi, le sottigliezze de i 
 " legali, e varie furberie de i possessori di questi 
 " beni, e diversi altri accidenti, e spezialmente 
 " le ordinarie morti, che annuleran le ridicolose 
 
 D D
 
 402 ON. THE PRESENT STATE OF THE 
 
 " disposizioni di chi vuol stendere il suo imperio, 
 " se potesse, sino al fine del mondo."* All Europe 
 has more or less run into error upon this point, 
 but in France entails have met with less counte- 
 nance than in most other countries. In 1560 the 
 French nobility would not permit their extension- 
 beyond the period of three lives/f but in process 
 of time they gained so much ground, and pro- 
 duced so much confusion, that the subject was 
 brought under consideration by the Chancellor 
 D'Aguesseau in 1731, and after taking the advice 
 of all the parliaments in the kingdom, he with great 
 care and labour drew up an Ordonnance which re- 
 ceived the royal sanction in 1747, by which they 
 were limited to two degrees between the creator 
 of the entail and the heir ; these degrees besides 
 being counted per capita, and not per stirpes. To 
 this Ordonnance the following preamble was af- 
 fixed : " Louis, par la grace de Dieu, roi de 
 " France et Navarre, a tous pr6sens et a venir, 
 " salut : Dans la resolution que nous avons prise 
 " de faire cesser 1'incertitude et la diversite des 
 " jugemens qui se rendent dans les differens tri- 
 " bunaux de notre royaume, quoique sur le fon- 
 " dement des mernes lois, la matiere des dona- 
 " tions entre-vifs et celle des testamens nous ont 
 " paru, par leur importance, devoir etre les pre- 
 " miers objets de notre attention, et elles ont fait 
 " le sujet de nos ordonnances des mois de Fevrier 
 
 * Difetti della Giurisprudenza, ch. xvii. 
 t Boulainvilliers, Etat dc la France.
 
 CIVIL LAW OF ENGLAND. 403 
 
 " 1731 et cTAout 1735. Nous nous sommes pro- 
 " poses ensuite d'etablir la meme uniformite de 
 ''jurisprudence a 1'egard des substitutions fidei- 
 " commissaires, qui peuvent se faire e"galement 
 " par 1'un et par 1'autre genre de disposition ; 
 " mais la matiere des fid6icommis, fort simple 
 " dans son origine, est devenue beaucoup plus 
 " composed, depuis que Ton a commence a 
 " entendre les substitutions non-seulement a plu- 
 " sieurs personnes appellees les unes apres les 
 " autres, .mais & plusieurs degres ou a une longue 
 " suite de generations. II s'est forme" par la 
 " comme un nouveau genre de succession, ou la 
 " volonte" de Thomme prenant la place de la loi a 
 " donne lieu d'etablir aussi un nouvel ordre 
 " de jurisprudence, qui a eHe" recu d'autant 
 " plus favorablement qu'on Ta regard^ comme 
 " tendant a la conservation du patrimoine des 
 " families et a donner aux maisons les plus 
 " illustres le moyen d'en soutenir 1'eclat; mais 
 " le grand nombre de difficult6s qui se sont 
 " elevees, soit sur 1'interpretation de la volonte" 
 *' souvent equivoque du donateur ou du testateur, 
 " soit sur la composition de son patrimoine et 
 " sur les diff6rentes detractions dont les fideicom- 
 " mis sont susceptibles, soit au sujet du recours 
 " subsidiaire des femmes sur les biens grev6s de 
 " substitutions, a fait naitre une infinite de pro- 
 " ces qu'on a vu meme se renouveler plusieurs 
 " fois a chaque ouverture du fid^icommis, en 
 *' sorte que, par un ^venement contraire aux 
 " vues de 1'auteur de la substitution,. il est arrive" 
 i) D 2
 
 404 ON THE PRESENT STATE OF THE 
 
 " que ce qu'il avoit ordonn6 pour Tavantage de sa 
 " faraille en a cause" quelquefois la ruine. D'un 
 " autre cdte", la ne"cessit6 d'assurer et de favoriser 
 " la libert^ du commerce ayant exig6 de la sa- 
 " gesse de la loi qu'elle 6tablit des formalit^s ne"- 
 " cessaires pour rendre les substitutions pub- 
 " liques, la negligence de ceux qui etoient obliges 
 " de remplir ces formalit^s, est devenue une nou- 
 " velle source de contestations, ou les suffrages 
 " des juges ont e*t6 suspend us entre la faveur 
 " d'un cre*ancier ou d'un acqu6reur de bonne foi, 
 " et celle d'un substitue' qui ne devoit pas e"tre 
 " priv6 des biens substitu^s par la faute de celui 
 " qui ^toit charg6 de les lui remettre. C'est par 
 " toutes ces considerations, qu'apres avoir pris les 
 " avis des principaux magistrats de nos parlemens 
 " et des conseils supeVieurs de'notre royaume, 
 *' qui nous ont rendu un compte exact de leurs 
 "jurisprudences diff^rentes, nous avons cru que 
 " les deux principaux objets de la matiere des 
 " fideicommis demandoient que nous partageas- 
 " sions cette loi en deux titres differens. Le pre- 
 " mier comprendra tout ce qui concerne les sub- 
 " situtions fideicommissaires conside>6es en elles- 
 " memes, et les droits que peuvent 6tre exerc^s 
 '* sur les biens substitue"s. Le second regardera 
 " les obligations impos6es a ceux qui sont grev^s 
 " de substitutions, soit pour leur donner le ca- 
 " ractere de publicit^ qui leur est n^cessaire, soit 
 " pour assurer la consistance et 1'emploi des effets 
 " qui en font partie, soit pour l'expdition et le 
 " jugement des contestations qui s'^levent dans
 
 CIVIL LAW OF ENGLAND. 405 
 
 " une matiere si importante. Si la multitude et la 
 " subtilite des questions abstraites dont elle est 
 " remplie, 1'opposition qui regne a cet egard non- 
 " seulement entre les opinions des plus c61ebres 
 " jurisconsultes, mais entre les jugemens des tri- 
 " bunaux les plus clair6s, et la n6cessit6 de r6- 
 " soudre des doutes ou le poids presque 6gal des 
 " raisons qu'on oppose de part et d'autre rend le 
 " choix si difficile entre les sentimens contraires, 
 " ont retard^ plus longtemps que nous ne 1'aurions 
 " d6sir la publication de cette ordonnance, nous 
 " esp^rons que nos peuples en seront ddom- 
 " mages par la grande attention que nous avons 
 " cue a la mettre dans 1'etat de perfection dont 
 " elle pouvoit etre susceptible. Loin de vouloir 
 " y donner la moindre atteinte a la Iibert6 de 
 " faire des substitutions, nous ne nous sommes 
 " proposes que de les rendre plus utiles aux 
 " families ; et notre application a pr6venir toutes 
 " les interpretations arbitraires par des regies 
 " fixes et uniformes, ne servira qu'a faire respec- 
 " ter encore plus la volont6 des donateurs et des 
 " testateurs, en les obligeant seulement a 1'expli- 
 " quer d'une maniere plus expresse. C'est ainsi 
 " que nous donnerons a nos sujets une nouvelle 
 ** preuve du soin que nous prenons de maintenir 
 " le bon ordre au-dedans de notre royaume, par 
 " I'autorit6 de nos lois, dans le temps m6me que 
 " nous sommes le plus occup6s a le defendre au de- 
 " hors par la force de nos armes, dont le principal 
 " objet est de procurer le grand bien de la paix a 
 " un peuple si digne de notre affection par son
 
 406 ON THE PRESENT STATE OF THE 
 
 " attachement pour notre personne, et par le zele 
 " qu'il fait 6clater tous les jours de plus en plus 
 " pour notre service. A ces causes, et autres a 
 " ce nous meuvant, de 1'avis de notre conseil 
 " et de notre certaine science, pleine puissance 
 " et autorit6 royale, nous avons dit, declare^ et 
 " ordonn, disons, d^clarons et ofdonnons, vou- 
 " Ions et nous plait ce qui suit."* 
 
 This reasoning well deserves attention both from 
 the capacity and experience of the writer, the pa- 
 tient and profound attention he had paid to the 
 subject, and its striking coincidence with the senti- 
 ments of Lord Stair, confessedly the ablest institu- 
 tional writer on the law of Scotland, and who was 
 long at the head of the law in that country as 
 D'Aguesseau was in France. " The perpetuities 
 " of estates," says he, " where they have been long 
 " have sufficiently manifested their accustomed 
 " inconvenience, and therefore devices have been 
 " found out to render them ineffectual. Only the 
 " Mqjoratus of Spain hath been most reasonable 
 " and stable, that the king nobilitating a person 
 " of merit and fortune, either by the king's gift 
 " or in his own right, that estate can neither be 
 " alienated or burdened, but remains alimentary 
 " for the preservation of the dignity of that fa- 
 " mily. But these perpetuities in England are 
 " now evacuated by a simulate action Of fine and 
 " recovery, and by warrants to bill purchased in 
 " parliament, which pass without much difficulty; 
 
 * CEuvrcsde D'Aguesseau, torn. xil. p. 265. and 4/6, 8vo.
 
 CIVIL LAW OF ENGLAND. 407 
 
 " and if they become frequent with us it is likely 
 " we will find the same remedy."* This predic- 
 tion has not yet had, but it is to be hoped will soon 
 have, its full accomplishment. Entails have there 
 become so frequent that they extend over half the 
 country, and the provisions which they contain, ge- 
 nerally unite every quality which can make any 
 particular branch of law abominable. They are 
 impolitic, oppressive, and unalterable. Owing 
 their origin to the most discreditable duplicity 
 and selfishness,! leaving younger children almost 
 always ill provided for and sometimes carrying 
 the whole estate to very distant male relations, 
 while the whole immediate female descendants of 
 the last possessor are left almost destitute, they 
 impose checks upon the acquisition and employ- 
 ment of property, which may not have done much 
 injury in rude times, but seriously confine the 
 range and depress the spirit of modern improve- 
 ment. 
 
 The English law of entail is different from both 
 of those which have been now mentioned. It 
 permits entails to be framed in appearance almost 
 as interminable as those of Scotland ; but they 
 may, if heirs of entail think proper, be prevented 
 from enduring beyond the period prescribed by 
 the antient law of France. They cannot be made 
 to last irrevocably beyond a life or lives in being, 
 and the minority of the persons who may then 
 
 * Stair's Institutes of the Law of Scotland, book ii. tit. iii. 
 sec. Iviii. 
 
 t Laing's History of Scotland, v. iv. p. l60.
 
 408 ON THE PRESENT STATE OF THE 
 
 succeed. Whether it would be practicable or 
 expedient to deprive the owner of real property 
 of any part of the powers which he now pos- 
 sesses of limiting and entailing it, is among the 
 most difficult questions which occur in the whole 
 range of English jurisprudence. It ought to be 
 done if it can. It is not fit that every man should 
 have the right of settling his property according 
 to what he conceives the state of his family re- 
 quires. It produces such an infinity of experi- 
 ments upon the law, and such endless intricacies 
 of arrangement, that the law becomes absurd and 
 confused by being twisted to so many different 
 purposes. If a man gives away real property ab- 
 solutely, however absurdly it is done it causes no 
 harm either to the law or the public, but every 
 man who invents a new mode of settling real pro- 
 perty does that which is extremely mischievous 
 both as an act and example. The evil which all 
 this produces is aggravated by the numerous and 
 circuitous methods by which these intentions are 
 executed. There are so many methods of limit- 
 ing the succession to real property and its enjoy- 
 ment afterwards, by means of executory devises, 
 springing uses, shifting uses, contingent remainders, 
 resulting trusts, reversionary interests, conditions pre- 
 cedent and subsequent in restraint of marriage or 
 otherwise, that the machinery which has been 
 constructed becomes unmanageable, and proba- 
 bly not one in a hundred of those settlements, of 
 the nicety and convenience of which conveyancers 
 are so apt to boast, has its provisions faithfully
 
 CIVIL LAW OF ENGLAND. 409 
 
 followed for twenty years after it comes into 
 operation. But whether the owner of real pro- 
 perty should be deprived of any part of the power 
 which he now possesses of limiting or entailing 
 it or not, the powers of enjoyment of it, which 
 those should have who are called to the succes- 
 sion, ought surely to a considerable degree to be 
 defined by the legislature. This observation ap- 
 plies particularly to the power of allowing main- 
 tenance for children, the power of sale, and the 
 power of appointing new trustees. It may be 
 doubtful also, whether specific legislative forms 
 should not be prescribed to which every person 
 who made a settlement should be obliged to con- 
 form. This would prevent conveyances from em- 
 brangling an entail by verbosity, and relieve Judges 
 from all difficulty respecting the nature of the in- 
 terests respectively granted. If it were further de- 
 clared, that no settlement should be effectual unless 
 registeredwithin a certain period from the death of 
 the maker or testator, registration would become 
 essentially necessary ; and if absolutely necessary, 
 it would be for consideration whether the different 
 tenants for years, for life, or in tail, might not be let 
 into possession of the estate, without the interven- 
 tion of those Trustees, whose nomination in the 
 instruments of settlement is now conceived to be 
 indispensably requisite. Trusts are a sort of Upas 
 tree, which can scarcely be prevented from over- 
 spreading and entangling the law of every country 
 where they have been permitted to take root. 
 Chief Baron Atkyns declared a century ago, that
 
 410 ON THE PRESENT STATE OF THE 
 
 Trusts " have perplexed and turmoiled almost 
 " every estate in England,"* and since that time 
 the evil has gone on regularly increasing, until 
 almost every man acts as a trustee for his neigh- 
 bour, or his neighbour for him. Let us consider 
 what happens to these trustees after their appoint- 
 ment. Either they do their duty conscientiously 
 or they neglect it. If as most frequently happens 
 they neglect it, either by refusing to act or by 
 too great facility in signing their names and giving 
 their consent to every measure and instrument 
 approved of by the person for whose benefit they 
 are appointed, they can do no good, and often do 
 much harm, either to their own fortune, to the trust, 
 or to both. If on the other hand they act conscien- 
 tiously, they are usually soon requested to sanction 
 proceedings which are either irregular or injudi- 
 cious, and by this means lose the countenance and 
 favour of their friends, and that frequently without 
 being able to render them any effectual assistance. 
 Friends then are unfit trustees from the disagree- 
 able alternative under which they are almost cer- 
 tain to be soon placed ; and barristers, convey- 
 ancers, and solicitors, are still more unfit, from 
 the manner in which their interest must neces- 
 sarily interfere with their duty. As one class 
 of professional persons is prevented by a rule 
 of practice from becoming responsible for their 
 clients, t all classes of them ought to be disquali- 
 fied from acting as trustees by statute. If trustees 
 
 * Abuses of Equity, p. 22 and 24. 
 f Tidd's Practice, p. 230, 4th Ed.
 
 CIVIL LAW OF ENGLAND. 411 
 
 are necessary, public officers ought to be appointed 
 for that express purpose. Their situation would 
 exempt them from any application to be accommo- 
 dating or unfaithful, and their duty would render 
 acquiescence impracticable. Their intelligence 
 would secure those whose interests they are 
 bound to protect from being ruined by careless- 
 ness or ignorance, and being always on the spot 
 and constantly accessible, there would be an incal- 
 culable saving to the public in expense, delay, and 
 trouble. But it may be questioned whether by far 
 the greatest part of trustees might not by means of 
 registration be superseded altogether. If the pro- 
 visions contained in the conveyances of real pro- 
 perty were enrolled, all parties interested might 
 know what they were and when they were in- 
 fringed ; and if it were declared that no vested in- 
 terest or remainder should be prejudiced by any 
 wrongful act of the tenant for life, or by the union 
 of the tenancy for life with the reversion ; trustees, 
 whether created for the imaginary purpose of 
 making entries and bringing actions as occasion 
 may require in order to support contingent re- 
 mainders or answer any of the ends which they 
 are now made to serve might almost all of them 
 be dispensed with. Even trusts of personal pro- 
 perty might by means of registration be managed 
 somewhat in the same manner ; and conveyancing 
 being brought at least so far back to the plainness 
 of Common Law, the rights and interests of all 
 parties concerned would be more easily under- 
 stood and defended. There is only one precau- 
 tion which it would be perhaps necessary to take,
 
 412 ON THE PRESENT STATE OF THE 
 
 and that is to prevent any alteration in the separa- 
 tion now established between courts of Common 
 Law and Equity. 
 
 As it would well become the legislature to de- 
 liberate whether some advisable alterations in the 
 forms of creating entails in fixing and arranging 
 their limitations and in settling the means of 
 securing the interests of the parties during their 
 continuance, may not be devised ; it might easily 
 effect some improvement in the means by which 
 they are destroyed. If they were permitted only 
 for a certain length of time or number of lives, 
 the arrival'of the period or full age of the person 
 in whom the entire fee vested, would distinctly 
 point out the limits of their endurance. If on the 
 contrary, it were thought proper to continue the 
 present system, and to permit the introduction of 
 a lengthened series of interests, which the tenant 
 in tail might at a certain time cut off, no person 
 will be found to deny that this might be done by 
 shorter, cheaper, and easier methods than those 
 of levy ing ajine and suffering a recovery, which are 
 now in use. These clumsy, intricate, and expen- 
 sive processes have been exposed and ridiculed 
 for upwards of a century by every person of ca- 
 pacity who has turned his attention to the subject,* 
 yet they remain to this day a signal monument of 
 the extent to which the private interests of officers 
 of courts of Law and Lawyers triumph over 
 public utility. It is to be hoped the day is not 
 
 * Delay of Suits at Law and in Equity. London, 1735, 
 p. 35. Barrington on the Statutes, p. 131 and 132. Blackstone's 
 Cora. v. ii. p. 360.
 
 CIVIL LAW OF ENGLAND. 413 
 
 far off, when such preposterous fictions will 
 unanimously be exploded. A deed for the pur- 
 pose of cutting off an entail, executed by the 
 parties entitled, or any deed which may be exe- 
 cuted incompatible with its continuance, would 
 answer every end which fines and recoveries now 
 do, at a twentieth part of the trouble and expense 
 which they occasion. If fines and recoveries of 
 legal estates were abolished, those of equitable 
 estates would necessarily fall with them. Indeed 
 they always were superfluous ; * and as the best 
 proof of this fact, they are supplied in some cases,| 
 and superseded in others,J where the ceremony, 
 had it been of any utility, would have been as 
 indispensable as in those in which it is now ex- 
 acted. 
 
 5. The last part of the law of real property to 
 which attention shall now be called as capable of 
 amendment, is the means by which real property 
 maybe charged for the purpose of raising money or 
 making provisions for wives and children, or any 
 other purpose. With respect to the first of these 
 objects, if registration were established, there 
 seems no reason why the person in possession 
 should not have the power of charging it upon the 
 estate. Registration would make this charge suf- 
 ficiently effectual, and if so, the usual apparatus of 
 
 * 1 Vesey's Rep. 14. 3 Atk. Rep. 815. 5 Ves. Rep. 13. 
 16 Ves. Rep. 224. 2 Merivale's Rep. 171. 2 Jacob and 
 Walker's Rep. 1. 206. 3 Co. Lit. 326, b. 
 
 t 3 Vesey's Rep. 69. 
 
 + 39 and 40 Geo. 3. chap. 56.
 
 414 ON THE PRESENT STATE OF THE 
 
 terms for 500 and 1000 years, would become su- 
 perfluous. Money raised by mortgage, or made 
 answerable for any demand by the judgment of 
 a court of justice, might in all cases be made 
 personal property, and secured by registration in 
 the same manner, and then Statutes Merchant, 
 Statutes Staple, Elegit, and Recognizance might all 
 be swept away together. At all events, these four 
 methods of fulfilling the same object cannot all 
 be requisite. The cause to which they owed their 
 origin has now ceased, and its effects ought to 
 cease with it. There might also be legislative 
 forms for mortgage deeds, and enlarged powers 
 might be given to mortgagees for assigning them, 
 and for altering the rate of interest, terms or 
 place of payment of interest, or any other condi- 
 tions of the security. It is well known that the 
 length of recitals contained in mortgage deeds, 
 and the expense of getting fresh deeds executed 
 is so great as frequently to preclude the mortgagor 
 from availing himself of the fall in the rate of 
 interest, and that in small sums it actually swal- 
 lows up aconsiderable portion of the principal. 
 Amendments in the law, even in matters of this 
 abstruse and apparently uninteresting nature, 
 would afford sensible relief to many families, 
 whom the present system has straitened or re- 
 duced to indigence. 
 
 ; In reply to the preceding observations on the 
 present state of the law of real property in Eng- 
 land, it has been said that it answers practical 
 purposes extremely well, and that neither the
 
 CIVIL LAW OF ENGLAND. 415 
 
 titles to estates, nor entails of them created by 
 will or settlement are productive of any great 
 proportion of the suits which are brought into 
 courts of justice. I believe an examination of the 
 fact will neither warrant these assumptions, nor 
 the inference intended to be deduced from them. 
 The farther the investigation is carried, the more 
 manifestly it will appear, that few titles to es- 
 tates which are sold are either clear or unclouded, 
 and that the provisions of scarcely any marriage 
 or testamentary settlement are carried strictly into 
 execution, and when they are scarcely ever with- 
 out the authority of a court of Equity. The suits 
 which in consequence of this state of things are 
 brought into courts of justice are far from infre- 
 quent, and though they were unknown, it would 
 not follow that difficulties about titles did not 
 exist. The disputes out of court which take place 
 among lawyers on behalf of their respective clients 
 relating to titles and family settlements, to some 
 class of whom recourse is almost invariably had 
 whenever the transference of real property takes 
 place, bring as much gain to them, and create 
 as much delay 'and anxiety to the parties, as 
 law-suits ought to do, and there is reason to 
 suspect that the true reason why they do not more 
 frequently end in law- suits is, that the parties are 
 driven to a compromise, through fear of the into- 
 lerable addition of vexation and expenditure which 
 those law-suits would occasion. No blame is here 
 intended to be cast upon any individual. It is dif- 
 ficult for any professional person to act otherwise
 
 41G ON THE PRESENT STATE, &c. 
 
 than custom or the system of the profession to 
 which they belong compels -them to do. Still the 
 system itself may be grossly erroneous and defec- 
 tive, and that this is the case the private acknow- 
 ledgments of practitioners, the universal com- 
 plaints of private parties, the declaration of the 
 judges, and the catalogue of annual private acts 
 of Parliament which are made to cut the knots 
 which lawyers and conveyancers are unable to 
 untie,* seem to afford superabundant evidence. 
 But whatever the opinion, or wishes of the public 
 may be, how or whence can they obtain relief? 
 Conveyancing is vastly too complicated for any 
 members of either House except lawyers to touch, 
 and none of them appear disposed to approach it. 
 Were the government to call in the temporary or 
 permanent assistance of two or three able con- 
 veyancers, and to make it as much their interest 
 to devise means for shortening deeds and instru- 
 ments as it is that of others to extend them, and 
 to simplify conveyances instead of involving and 
 diversifying them, it would be no less delightful 
 than surprising to witness the improvement, clear- 
 ness, and compactness of which both deeds and 
 conveyances would then be found susceptible. 
 Few undertakings could be named, of which the 
 successful prosecution would diffuse greater satis- 
 faction throughout every corner of the country. 
 
 * Blackstone's Com. v. ii. p. 344.
 
 CHAPTER III. 
 
 ON THE MEANS BY WHICH THE GENERAL IMPROVE- 
 MENT OF THE ADMINISTRATION OF JUSTICE MAY 
 MOST EFFECTUALLY BE FACILITATED. 
 
 THE two chief ends of every government is to 
 protect its subjects against invasion from without 
 and injustice from within. For the attainment of 
 the one it must depend upon its fleets and armies. 
 The other is accomplished by means of good laws 
 impartially and regularly executed. Though the 
 first be in many respects only subsidiary to the 
 second, it has invariably received a larger portion 
 of attention. Those whose powers of mind and 
 body have been exhausted in ascertaining the ' 
 rights and promoting the security of their fellow 
 citizens on the judgment seat, have received but a 
 small portion of that general and enthusiastic ad- 
 miration, which has been so lavishly bestowed 
 upon those by whom their rights have been de- 
 fended in the field. The delight which the mass 
 of mankind take in narratives of war and battle, 
 and the interest they feel in the fortunes of those 
 who contribute to urge the tide of conquest or 
 swell the roar of victory, has hitherto far exceeded 
 that which has ever been afforded by the gentle and 
 unostentatious triumphs gained by law and equity, 
 over the force of the powerful and stratagems of 
 the unjust. But if a period should arrive, when 
 the sword shall become subservient to the ba- 
 lance, and the qualification of the government to 
 promote the moral and social happiness of the 
 
 E E
 
 418 OX THE PRESENT STATE OF THE 
 
 people shall be deemed the best test of its excel- 
 lence, and the extent of that happiness the de- 
 cisive mark of national superiority, then the state 
 of the law and the character of its administration 
 will in every country assume that paramount im- 
 portance which of right belongs to them, and both 
 among statesmen and throughout the community, 
 become the theme of more frequent and deep 
 deliberation than they have ever yet been. " I 
 " look upon the administration of justice," says 
 Lord Hardwicke, " as the principal and essential 
 " part of all government. The people know and 
 " judge of it by nothing else. The effects of this 
 " are felt every day by the meanest, in the busi- 
 " ness and affairs of common life. Statesmen in- 
 *' deed have their attention called off to more ex- 
 " tensive political views : they look abroad into 
 " foreign countries, and consider your remote in- 
 ** terests and connections with other nations. But 
 " of what utility are those views, great as they are, 
 *' unless they be referred back to your domestic 
 " peace and good order ? The chief office of go- 
 " vernment is to us the regular course of law and 
 " justice."* This is so true, that the freedom of 
 any government, and greatness of its people, can- 
 not be so correctly estimated by any single circum- 
 stance as by the regard which has been entertained 
 in it for the enforcement of justice, and the rank 
 which its ministers have held in the estimation of 
 the public. An enlightened and incorrupt dispen- 
 sation of justice is as unfit for a despotic or tyran- 
 nical government, as a despotic or tyrannical go- 
 
 ' * Mansard's Parliamentary History, v. xiv. p. 20.
 
 CIVIL LAW OF ENGLAND. 419 
 
 vernment is incompatible with it. In all the rela- 
 tions in which it can be viewed, in its immediate, 
 remote, and collateral consequences, no state can 
 display too much anxiety for the acquisition, con- 
 tinuance, and improvement of this invaluable bless- 
 ing. There are three things by which the admi- 
 nistration of justice is affected the details con- 
 nected with its administration the qualifications 
 of the persons by whom that administration is con- 
 ducted and the character of the laws themselves 
 which are administered. All of these act and re-act 
 so powerfully upon one another, that when any 
 practical measure is in contemplation, they ought 
 always to be viewed in conjunction, although, for 
 the sake of order and perspicuity, it may here be 
 mpre expedient to treat them separately. 
 
 SECTION I. 
 
 Of the Details connected with its Administration. 
 
 UNDER these terms, all those arrangements are 
 meant to be included which are preparatory or 
 auxiliary to the administration of justice itself. 
 No apprehension however need be entertained of 
 any attempt being here made to trace the out- 
 line of an entire judicial system. To develope 
 imaginary schemes of excellence and perfection, 
 and deduce the admirable consequences which ne- 
 cessarily follow from abstract general principles, 
 cannot fail to be agreeable, and may sometimes 
 
 E E 2
 
 420 ON THE PRESENT STATE OF THE 
 
 prove instructive. They are very favoured indi- 
 viduals who are qualified to tread within such a 
 circle. The object of the following observations is 
 of a more confined and practical nature. It is 
 merely to select a few important particulars, 
 which seem entitled to attention in every good 
 system of jurisprudence, and which, though suf- 
 ficiently obvious, have oftentimes been too much 
 neglected. 
 
 1 . The first and least important of these which 
 shall be mentioned, is the convenience of the 
 courts in which justice is administered. By those 
 persons who pretend to look only at essentials, 
 this topic may be deemed more trifling than it 
 perhaps really is. That the mere form or appear- 
 ance of the place where justice is dispensed has 
 any marked influence upon the dispensation of 
 justice itself, is not meant to be maintained. Still 
 less is it insinuated that any anxiety should be 
 shewn to render courts of justice objects of archi- 
 tectural decoration. At the same time, as all 
 mankind are affected by external circumstances, 
 it seems fit, even in point of shew, that they 
 should present an appearance of decent stateli- 
 ness, corresponding to the wealth and conse- 
 quence of the country for whose service they have 
 been erected. It is of much greater consequence 
 that they should be placed in a convenient situa- 
 tion, be of convenient construction, and of suf- 
 ficient size for the accommodation of practitioners, 
 parties, and a reasonable portion of the public. 
 In most of these respects the courts of justice in 
 England are almost all exceedingly defective.
 
 CIVIL LAW OF ENGLAND. 421 
 
 They are planned with little skill, and almost all 
 of them are so small as to deny to those who are 
 obliged to attend them that moderate accommo- 
 dation which they have a right to expect. Easy 
 egress and regress on such occasions, and facility 
 of intercourse between parties where communica- 
 tion is frequently required, afford great relief to 
 the judge and practitioners, and enhance both the 
 quantity and quality of the business which has 
 been transacted. The propriety of all subordi- 
 nate arrangements, the certainty of the times at 
 which the judges sit, the regularity of the hours 
 at which they take and leave their seats on the 
 bench, and the undeviating order in which busi- 
 ness is carried on, all contribute to the same end. 
 Whatever prevents tumult and irregularity, ma- 
 terially tends to promote the expeditious, de- 
 corous, and satisfactory administration of justice; 
 and in several of these points our judicial system 
 is capable of decided amelioration. 
 
 2. As courts of justice ought themselves to be 
 convenient, it is of far greater moment that the 
 proceedings in them should be public. As pub- 
 licity is one of the most easy, obvious, and ef- 
 fectual, of all securities for the pure administra- 
 tion of justice, it is surprising it should not have 
 been more universally established. There can be 
 no motives for secrecy but those which none are 
 willing to avow. In Lord Hardwicke's manu- 
 script notes of his own speech, on moving the 
 address of the House of Lords to George III. on 
 his Majesty's proposal to make the judges inde-
 
 422 ON THE PRESENT STATE OF THE 
 
 pendent of the demise of the crown, the following 
 appear to be the heads upon which he intended 
 principally to enlarge : " In the best policied 
 " countries abroad, judges do not give the rea- 
 " sons of their judgments in public and openly 
 " some persons prefer the reputation of their un- 
 " derstanding to that of their conscience would 
 " be ashamed to talk nonsense to the world in 
 " support of a judgment that they would suf- 
 " fer themselves privately."* Even at this day 
 there are many countries in Europe, where the 
 practice is in direct contradiction to every one of 
 these opinions. In Spain, Portugal, Austria, Prus- 
 sia, Italy, and it is believed also in Bavaria, Den- 
 mark, Sweden, and Russia, many of the courts are 
 closed against the public, and no reasons are as- 
 signed for the judgments which have been deliver- 
 ed. However singular it may appear in this country 
 that any doubt should exist respecting the mani- 
 fold mischiefs of such a custom, a keen controversy 
 is at this moment going on in the principal states 
 of Germany on the subject. To hear causes in 
 private, and to decide them in private, with rea- 
 sons, and still more without them, cannot from the 
 constitution of human nature be" favourable to the 
 able and upright administration of justice. The 
 greatest stimulus to exertion and check to mal- 
 versation is removed, and every possible facility 
 to misconduct is afforded. In no country are pro- 
 ceedings in courts of justice more open to public 
 
 * Hansard's Parliamentary History, v. xv. p. 1012.
 
 CIVIL LAW OF ENGLAND. 423 
 
 inspection than in England. They are accessible 
 at all hours and upon all occasions. There are 
 scarcely any exceptions to this rule, except when 
 petitions are heard at the Rolls by consent ; where 
 causes are heard before the judges in Equity when 
 they happen to be in their own houses ; or where 
 all parties concerned desire when they are brought 
 on in court, that the hearing should be private. 
 The first of these is in fact no exception at all. 
 The petitions heard before the Master of the Rolls 
 might just as well be public as private, and it 
 Would be perhaps better if they were. About 
 the exclusion of the public in the other instances 
 there may be greater doubt. Wherever a judge 
 sits to administer justice, whether in the court 
 where he presides or in his own house, the place 
 which he occupies immediately becomes a judicial 
 tribunal, to which the public ought to have unre- 
 strained admission. What oyght to be done where 
 all the parties desire the hearing to be private, 
 presents more serious difficulties, especially as it 
 happens in most of such causes that publicity would 
 be painful to the feelings of most of the parties, 
 and, to say the least of it, of no service to the 
 morals of the country. At the same time the 
 notoriety of judicial proceedings is of such para- 
 mount consideration, that it would perhaps be de- 
 sirable that it should be established without limi- 
 tation or exception. If any matter is discussed 
 in courts of justice which ought not to be al- 
 lowed to meet the public eye, the judge might be 
 allowed to use every precaution to prevent them
 
 424 ON THE PRESENT STATE OF THE 
 
 from being widely disseminated; but the court 
 itself, in which the proceedings take place, ought 
 to be perpetually open. Not only does it seem 
 desirable that the proceedings of courts of justice 
 should be public, and that the judges should pub- 
 licly declare the reasons of their judgments, but 
 every thing connected with the state of the busi- 
 ness of courts of justice ought, as far as possible, 
 to be made public also. For this purpose it seems 
 fit that complete rolls of all causes which are in 
 dependence before the court or any of its inferior 
 officers, either originally or upon appeal, should 
 be regularly prepared and posted up in one of the 
 most conspicuous parts of the court. It is not 
 believed that this has been at all attempted abroad, 
 and not half the use of which it is susceptible has 
 hitherto been made of it in England. There is 
 however scarcely any amendment in legal pro- 
 ceedings which would occasion so little trouble 
 and expense, and would be so beneficial both to 
 suitors and the public. It would shew, at one 
 glance, the nature and amount of the arrears, the 
 quantity of business done, and the regularity with 
 which it was transacted. Indeed every proposal 
 which makes the administration of justice, and 
 the details connected with it, better known, must 
 almost of necessity promote its improvement. It 
 is a principle to which there can scarcely be any 
 restriction with respect to time, place, or subject. 
 Its effect is similar to that which the light of the 
 sun produces upon the surface of the earth which 
 we inhabit. It dispels what is noxious, detects
 
 CIVIL LAW OF ENGLAND. 425 
 
 what is irregular, defective, or imperfect, and 
 sheds an animating, purifying, and correcting in- 
 fluence wherever it extends. 
 
 3. Another of the circumstances most favour- 
 able to the promotion of justice is, that simplicity 
 should be studied in every part of the system of 
 judicature by which it is administered. There 
 should be as few degrees of courts and judges, 
 and as few varieties of jurisdiction, as possible. 
 This is not only a theoretical advantage, but pro- 
 ductive of incalculable practical benefit. The less 
 intricate the judicature of any country is, the more 
 clearly it is understood by its subjects, and with the 
 more readiness and certainty do they know where 
 to go when they are injured. There v is scarcely any 
 law in Europe which may not in this respect be 
 materially amended. The Roman Catholic religion 
 and the feudal system were both favourable to 
 every sort of intricacy and anomaly. The first 
 withdrew the cognizance of ecclesiastical matters 
 from those to whom it belonged in all other cases, 
 and the second tended to allow every chief to 
 dispense justice in his own way within his own 
 territory. The inconvenience resulting from this 
 unnatural and excessive subdivision of jurisdic- 
 tions is still felt in almost every country in Eu- 
 rope, and no where more sensibly than in England. 
 We have the courts of Common Law and Equity, 
 the court of the Privy Council, the court of Ad- 
 miralty, the Ecclesiastical courts, the court of 
 Great Sessions in Wales, the courts of the three 
 counties of Chester, Lancaster, and Durham, the
 
 426 ON THE PRESENT STATE OF THE 
 
 Stannary courts of Cornwall, the courts of the 
 Recorders of London, Bristol, and other places, 
 the courts of Quarter-Sessions in each of the fifty- 
 two counties of which the country is composed, 
 the Hundred courts, Courts-Baron, and the In- 
 solvent Debtors' court, and no less than 416 
 courts of Conscience established in different 
 places for the recovery of small debts. The di- 
 vision between the ecclesiastical and secular ju- 
 risdiction is unnecessary altogether, and a large 
 proportion of these local jurisdictions might be also 
 superseded. To attempt to alter or remodel any of 
 the chief departments of judicature might occasion 
 unforeseen difficulty and inconvenience ; but of the 
 practicability and expedience of suppressing many 
 of the subordinate divisions there can scarcely be 
 a question. The whole of the local jurisdictions 
 ought perhaps to be made to give place to a more 
 comprehensive system. As an instance of the 
 hardship which results from the intangled juris- 
 diction of the higher courts, take that of a will of 
 real and personal estate. The Ecclesiastical courts 
 have alone power to declare what is or is not a 
 good will of personal estate, and we shall sup- 
 pose them to declare it to be good accordingly. 
 If the same will should be discussed in courts of 
 Equity with regard to the real estate, these courts 
 may entertain doubts which affect its validity, 
 not only as to the real but the personal estate 
 also, and may send it to be tried in one of the 
 courts of Common Law, by which alone wills of 
 real estate can in strictness be tried. At Common
 
 CIVIL LAW OF ENGLAND. 427 
 
 Law a will may then be declared bad in respect 
 of the real estate, which in the Ecclesiastical 
 courts had been found good with respect to the 
 personal estate; or if the parties are willing to 
 abide by the decision of the court of Equity with- 
 out sending it to Common Law, that court will 
 proceed to prove it with respect to the real estate 
 in a manner different from that which is recog- 
 nized by either. In this case neither consistency 
 nor convenience is discernible in the proceedings 
 which may or must be instituted in these different 
 courts, but an unfortunate tendency to retard and 
 enhance the expense of the administration of jus- 
 tice, which it is the end of all of them to promote. 
 So far from diminishing the number of jurisdic- 
 tions, it is now proposed in this country to in- 
 crease their number. This will be the effect of 
 the County Court Bill which was rejected last 
 year, and has again been laid before parliament 
 for its adoption in the course of the present 
 session. The necessity of affording to the sub- 
 jects some such relief as that which this bill pro- 
 poses, must distinctly be admitted. An exten- 
 sive and pressing evil exists, and it is the duty 
 of the legislature to endeavour to find a remedy. 
 A plan not very dissimilar to that which has now 
 been introduced, was one of the proposals which 
 Shepherd laid before the country in 1657. It 
 was one of his recommendations " to set up a 
 " court of judicature in every county to be kept 
 " by some of the justices of the peace, with a law- 
 " yer for some special matters, as probate of wills,
 
 428 ON THE PRESENT STATE OF THE 
 
 " poor men's causes, matters of equity under 
 " 100, tithe and legacies of that value."* And 
 in furtherance of the same object he superadds, 
 " That the county courts, hundred courts, and 
 " courts-baron, be regulated for the fees and pro- 
 " ceedings therein by the justices of the peace in 
 " the county, and able judges settled and kept in 
 " them, and that all the small causes be kept and 
 " tried there, and that men have no power by 
 " pleas and removes to take the small causes out 
 " of these courts as now is used. That a lawyer 
 " sit there to be paid by him that hath the profits 
 " of the court; and the fees and proceedings to 
 " be printed."! Whether the plan here specified 
 or that contained in the County Court Bill would 
 afford a suitable remedy for the grievance, and add 
 one more to the already overcharged list of juris- 
 dictions, it remains for those who are qualified to 
 determine. To add without deducting appears in 
 such a case a disadvantage. It then comes to be 
 considered what effect the institution of a new 
 jurisdiction is likely to create upon the courts of 
 Quarter-Sessions and Common Law courts in 
 "Westminster Hall, which are the two jurisdictions 
 most likely to be affected by it. It may perhaps 
 affect both, but if it succeeds, one or other of 
 them must be affected unavoidably. In this re- 
 spect it must be regarded as an experiment of so 
 bold a character as -to demand all the consideration 
 which the legislature can bestow upon it. If it 
 
 * Shepherd's England's Balme, 1657, 12mo. p. 62. t Id. p. 63.
 
 CIVIL LAW OF ENGLAND. 429 
 
 succeeds, it is scarcely possible that it should not 
 be extended a great deal farther; and if it should, 
 it may be worth while to reflect what the effect 
 upon the courts of Quarter-Sessions and Westmin- 
 ster Hall would most likely be. If it affected the 
 local magistracy merely as judges, the country 
 would have no reason to entertain any apprehen- 
 sions with regard to the change. Notwithstand- 
 ing the eulogies, which individuals of the highest 
 character have passed upon the unpaid magistra- 
 cy, if they are considered merely as judicial cha- 
 racters, it is impossible for any impartial person 
 to treat them with extraordinary reverence. Many 
 country gentlemen who act as magistrates are no 
 doubt possessed of considerable legal acquire- 
 ments and great .experience in country affairs ; 
 but the course of things and present intricacy of 
 the law renders it impossible to suppose that re- 
 gularly educated and permanent stipendiary ma- 
 gistrates would not administer justice with greater 
 ability and impartiality. Those qualities of mind 
 which make a good judge are neither acquired 
 easily nor rapidly; and in the present state of law 
 and society, those whose sole business it is to dis- 
 pense justice, will succeed better than those who 
 make it only a subordinate study and concern. 
 Considered merely with a view to the adminis- 
 tration of justice therefore, it seems clear that 
 it would be dispensed better by regular and sti- 
 pendiary judges than by the gratuitous services 
 of country gentlemen. But there are other as- 
 pects in which the subject well deserves to be
 
 430 ON THE PRESENT STATE OF THE 
 
 considered. Those country gentlemen who act 
 as magistrates, form an important link in the chain 
 of society, and various functions are, assigned to 
 them in the theory and practice of our constitu- 
 tion, which probably would be imperfectly dis- 
 charged if their judicial character and conse- 
 quence sustained a total alteration. The duties 
 they have to fulfil at Quarter-Sessions keep them 
 resident in the country ; the attention they are 
 obliged to pay to the state and change of the 
 laws, keeps alive the interest they feel in public 
 measures ; and that practice in speaking and deli- 
 beration which this situation superinduces, quali- 
 fies almost every person of considerable property, 
 for performing his part in public when it becomes 
 necessary, which is one of the most striking cha- 
 racteristics of the gentlemen of this country. 
 Whether the state might not upon the whole be 
 more injured by their depression than it would 
 be benefited by the probable improvement in the 
 administration of justice, then becomes the ques- 
 tion, and it is one which it seems not very easy to 
 settle. Let us now look at the effects this insti- 
 tution might have upon the courts of Common 
 Law at Westminster Hall. As the Common Law 
 courts rose upon the ruin of the County and Hun- 
 dred courts, this new jurisdiction would most 
 probably rise upon theirs. Whether this second 
 change would be beneficial, is somewhat perplex- 
 ing likewise. Unless the judges who preside in 
 the projected County courts were men of great 
 judicial endowments, who had no other duties to
 
 CIVIL LAW OF ENGLAND. 431 
 
 discharge, it would almost certainly prove prejudi- 
 cial. To give 600 or 800 a year to a certain num- 
 ber of barristers of no decided capacity or acquire- 
 ments, to make a circuit for a limited time through 
 
 ' O 
 
 different parts of the country, seems to be one of 
 the least feasible plans imaginable. Too many of 
 such half measures have been tried in this country 
 already, and for any really valuable purpose they 
 have invariably proved equally expensive and in- 
 efficient. If, on the other hand, the new judges 
 are raised a step higher in salary and character, 
 than has now been supposed, they would be more 
 likely than in the other case to interfere with 
 their brethren in Westminster Hall, while there 
 might be considerable doubt whether the busi- 
 ness before them would eventually be dispatched 
 more cheaply or with greater satisfaction. The 
 courts of law being now few, assembled in one 
 place, the judges being possessed of the greatest 
 acquirements that can be found, and the commu- 
 nication between town and country being so 
 much facilitated, all these circumstances strongly 
 militate against the transference to any other 
 quarter of the business which has for so many 
 centuries been there conducted. It is not at- 
 tempted to anticipate what arrangement it would 
 on this occasion be wisest to adopt. Whether any 
 division of the jurisdiction which is intended to 
 be given to the County courts might be made 
 between the Circuit courts, Quarter-Sessions, and 
 courts of Conscience ; or whether the proposed 
 County courts should supersede some of the
 
 432 ON THE PRESENT STATE OF THE 
 
 courts now existing, requires patient and close 
 investigation. All that is here contended for is, 
 that when we have already so many jurisdictions, 
 jostling and crossing one another, to add a new 
 element of confusion without any of the pre-exist- 
 ing ones being withdrawn, seems to be running 
 counter to one of the chief rules by which all ju- 
 dicial reformation should be governed. 
 
 If it be inexpedient to have many jurisdictions, 
 it is still more objectionable to have many gra- 
 dations of courts in each jurisdiction. The sys- 
 tems of judicature established in most countries 
 of Europe abound too much in a succession of 
 courts, rising one above another, from the subor- 
 dinate court of the district to the court of last 
 resort established in the capital. This principle 
 was always bad, and is now more indefensible 
 than ever. Of all the unwelcome prospects that 
 can open on an anxious litigant, a tedious vista of 
 appeals is certainly the most dejecting. It gives 
 a decided advantage to the rich man over the 
 poor, and independently of the expense it entails, 
 it may be doubted whether it is the best way of 
 having the merits of a cause impartially and dis- 
 passionately examined. It is better that a system 
 of judicature should ensure an able and complete 
 judgment at first, than give the suitor an opportu- 
 nity of ten revisions of it afterwards. There never 
 could be any reasons for more than three ranks 
 of courts, and two will generally be found suffi- 
 cient. In England few of the causes which arise 
 in Common Law or in Equity are discussed in
 
 CIVIL LAW OF ENGLAND. 433 
 
 more than two courts, that in which they are ori- 
 ginally brought, and that to which they are carried 
 by appeal afterwards. But though this is the 
 case in practice, yet both in Equity and at Com- 
 mon Law these discussions may in most instances 
 be doubled. A cause in Equity may now be 
 twice tried before the Master of the Rolls or 
 Vice Chancellor, and twice before the Chancellor, 
 before it is decided for the fifth time in the court 
 of ultimate appeal. At Common Law a cause 
 may be brought by appeal from the Quarter Ses- 
 sions to the courts of King's Bench or Common 
 Pleas, each of which courts may desire it to be 
 again spoken to after it has been once regularly 
 debated. If brought to the Common Pleas it 
 may be carried, as has been already mentioned, 
 to the King's Bench, and if to the King's Bench 
 from that to the Exchequer Chamber; and either 
 from the King's Bench or Exchequer Chamber 
 to the House of Lords. This appears to be car- 
 ried in France to an extreme which must be pro- 
 ductive of considerable oppression. In that 
 kingdom there are three degrees of courts, those 
 of the first, second, and third instance. When a 
 cause has been heard by those of the first and 
 second instance, and comes by appeal to that of 
 the third or Cour de Cassation, it is not at once de- 
 termined there, but sent down to another court of 
 the same degree with that from which it has come, 
 in order that it may there undergo revision. 
 Though no definitive judgment however is pro- 
 nounced by the Cour de Cassation, it is impossible 
 
 F F
 
 434 ON THE PRESENT STATE OF THE 
 
 that it should not in it be submitted to some de- 
 gree of discussion. If the judgment formerly 
 given should be confirmed in the court to which it 
 is sent down, and again appealed to the Cour de 
 Cassation, it may be sent down a third time to 
 a third court in the same manner, and it is 
 only in case of a third decision contrary to the 
 opinion of the judges of the Cour de Cassation that 
 the question comes there to be regularly de- 
 bated. This court then assembles in an audience 
 solennelle under the presidency of the keeper of the 
 seals, and pronounces a final judgment. In what 
 has now been mentioned respecting the judicial 
 system of France, recourse has necessarily been 
 had to private information; for it is singular 
 enough, that whatever anxiety may have been 
 shown to disseminate a knowledge of the French 
 law among the people, no written book has yet 
 given any systematic account of its judicature, 
 though the system of judicature forms one of 
 those parts of the law in which the public is 
 so materially interested. Supposing however, 
 what has been stated to be correct, the result 
 will be, that every question in law or Equity 
 may be discussed five several times in Eng- 
 land and no less than six in France. One can 
 hardly conceive any process to be more harass- 
 ing and exhausting. Under no circumstances 
 can so much revision be advisable. It is no 
 reply to the objection which has been urged 
 against it, that a plaintiff or defendant will sel- 
 dom be carried through all the stages of appeal
 
 CIVIL LAW OF ENGLAND. 435 
 
 which by the letter of the law are practicable. 
 Though not used, why should it be possible to 
 use them ? This protracted war of argument is 
 more likely to convert judges into critics of each 
 other's reasoning, and partizans of the various 
 opinions which are maintained before them, than 
 ingenuous inquirers after truth, or calm and un- 
 biassed directors of the streams of Law and Equity 
 which it is their duty to dispense. 
 
 4. There is one other point which so greatly 
 affects the system of judicature, that it ought not 
 to pass wholly unnoticed. It is, whether all the 
 tribunals which it recognizes should be permanent, 
 or whether some, and which of them, and to what 
 degree, ought not to be rendered ambulatory. 
 There are decided advantages and disadvantages 
 to be met with either way. There is no state 
 in Europe where the judges of the supreme courts 
 of law make annual circuits round the whole 
 country except in the British empire, nor is there 
 any other method by which the whole body of 
 the subjects are enabled to avail themselves of so 
 much ability on the bench and at the bar, with 
 so much convenience, and at so little comparative 
 expence. On the other hand, if courts were to 
 continue ambulatory too long, the life led would 
 become so disagreeable, that men of the highest re- 
 putation would cease to preside in them or practise 
 before them ; and even though they did, their atten- 
 tion would become so dissipated by change of place, 
 that the faculties of the mind could not be brought 
 to bear upon any subject with their usual energy. 
 
 F K 2
 
 436 ON THE PRESENT STATE OF THE 
 
 Besides all this, if there is a press of business and 
 the time of court at any one place is limited, 
 the bench and the bar are apt to become impa- 
 tient, and to dispatch business with much greater 
 rapidity than the difficulty of causes will warrant, 
 and by contrivances to which they ought never 
 to be permitted to resort. This is said very often 
 now to happen, and it is a sort of mal-adminis- 
 tration of justice which cannot be guarded against 
 with too much vigilance. Against this last de- 
 fect, permanent provincial courts are more likely 
 to be free. But besides the disadvantage of 
 forming an additional step in the ascending scale 
 of appellate jurisdictions, there is a strong dis- 
 position every where prevailing, to be dissatisfied 
 with what is nominally of a secondary order, 
 and the indolence or contraction of mind which 
 a provincial residence frequently induces, is apt 
 to make the value of the judgments of these 
 courts secondary in reality as well as in appear- 
 ance. It may therefore be desirable to postpone 
 the establishment of these courts as long as it 
 can, and to provide a sufficient supply of judges 
 belonging to the supreme Courts, deliberately 
 to dispose of all the causes which are set down 
 before them, within a period not exceeding the 
 six weeks during which the longest circuit is 
 supposed to last.
 
 CIVIL LAW OF ENGLAND. 437 
 
 SECTION II. 
 
 Of the Judges and Practitioners by whom Justice is admi- 
 nistered. 
 
 Every country must select its judges, whatever 
 their moral or intellectual endowments may be, 
 from among the men who are furnished by the 
 passing day among its own subjects. There is 
 no doubt great difficulty in selecting them, as 
 well from the union of qualities required, as 
 from the intricacy of the subjects on which they 
 are employed. This has not escaped the saga- 
 city of Muratori, who has observed " Secondaria- 
 " mente, all' oscurita delle materie si aggiunge 
 " poi la diversa dispozion delle teste degli uo j 
 " mini, che maneggiano le bilance della Giustizia. 
 " In alcuni abbonda 1'ingegno, ma pocoil giudizio; 
 " in altri la scienza e lieve ma vigoroso il razio- 
 " cinio : al contrario d' altri, che intisichiscono su 
 " i libri, e hanno gran copia di leggi e paragrafi 
 " pronti, ma non sanno raziocinare."* Yet there 
 are no public officers in the state whose attainments 
 are of more general concernment. They ought if 
 possible to be men of general learning and capacity, 
 to which it would further be desirable to superadd 
 the advantages of travel and communication with 
 learned men, without which capacity can never 
 be improved to the utmost. These advantages 
 
 * Difetti dclla Giurisprudcnza, p. 43.
 
 438 ON THE PRESENT STATE OF T-HE 
 
 will not of themselves make a distinguished judge, 
 but it has seldom happened that a judge has 
 attained a lofty and durable reputation without 
 them. No man is so likely to contract prejudices 
 or narrow views both of law and government, as 
 he who has never stepped beyond the limits of 
 his own country, or is unacquainted with all pur- 
 suits but .those which belong to his own profes- 
 sion. The law is and ever must be a laborious, 
 and consequently to most men rather an exclusive 
 profession ; but it is scarcely possible to mention 
 a single judge whose name is held in lasting 
 remembrance, who has not had more than mere 
 case-law to recommend him. Lord Bacon, Coke, 
 Bulstrode Whitlocke,* Lord Hale, Serjeant May- 
 nard, Selden, Lord Somers, Lord Talbot, Lord 
 Hardwicke, Blackstone, Lord Mansfield, and Lord 
 Thurlow, who are among those who have done 
 most honour to the law of England, have been 
 remarkable for their love of general as well as 
 of legal learning. Lord Somers, in particular, 
 is said to have expressed his opinion in the 
 strongest manner of the utility of supplying the 
 bench with sound constitutional lawyers ; and of 
 Lord Hale, who taken altogether is perhaps the 
 most eminent man who ever adorned the legal 
 profession in this or any other country, we are 
 informed by his biographer that " It will seem 
 " scarce credible that a man so much employed 
 
 * See his speech on installing the Chief Baron of Exchequer. 
 Lives of the Chancellors, v. ii. 64.
 
 CIVIL LAW OF ENGLAND. 439 
 
 " and of so severe a temper of mind, could find 
 " leisure to read, observe, and write so much of 
 " these subjects as he did. He called them his 
 " diversions; for he often said, when he was 
 " weary with the study of the law or divinity, he 
 " used to recreate himself with philosophy or the 
 " mathematics. To these he added great skill 
 " in physic, anatomy, and surgery. And he used 
 " to say that no man could be absolutely a mas- 
 " ter in any profession without having some skill 
 " in other sciences. For besides the satisfaction 
 " he had in the knowledge of these things, he 
 " made use of them often in his employments."* 
 He ought to make use of them in his employ- 
 ments, and if he has them not to use, these em- 
 ployments will go on the worse without them. No 
 judge can safely be behind the times he lives in. 
 An acquaintance with cases and a knowledge of mi- 
 nute points of practice can scarcely be rated too 
 highly. They are always of evident, and frequently 
 of decisive utility. Yet after all, they cannot be 
 deemed the greatest qualifications of a judicial 
 character. A judge who devotes himself for a 
 long course of years to the mere mechanical part 
 of the law, without studying it as a science, or 
 looking at the extent to which the system he is 
 administering fulfils the ends of justice, becomes 
 incapable of looking at the subject in one of its 
 most interesting and useful points of view. A 
 distinct perception of the grand rules of Law or 
 
 * Burnct's Life of Sir Matthew Hale, p. 25.
 
 440 ON THE PRESENT STATE OF THE 
 
 Equity is by no means so easily acquired as is 
 usually imagined. A maxim may easily be 
 quoted, or a leading doctrine referred to by a 
 wavering mind striving to escape from a diffi- 
 culty, but a thorough command of such a body of 
 general principles as will satisfactorily solve the 
 mass, of cases which occur, without suffering one of 
 them to do violence to another, is what few judges 
 have attained unto. A correct and comprehensive 
 knowledge of the main principles of law has 
 scarcely ever been combined in the same indivi- 
 dual with an extraordinary familiarity with all 
 the intricacies of practice. In the present state 
 of the law of England it is impossible, and there 
 is no reason why the fact should either be con- 
 cealed or evaded. The more both of them can 
 be acquired, so much the more perfect does the 
 judicial character become, but if an election must 
 be made that which is more necessary ought to be 
 preferred to that which is less. In a subordinate 
 judge a knowledge of practice may wisely be 
 made his chief recommendation, but the higher he 
 is elevated in rank, the more indispensable is it 
 that he should have an enlarged view of human 
 knowledge and affairs, and above all a firm grasp of 
 the leading rules of natural rectitude and justice. 
 This, among others, is an unanswerable reason 
 why judges should be elevated to the bench before 
 they be too aged. The mind of a lawyer soon 
 becomes warped, unless great care is taken to pre- 
 vent it. The habit of arguing on every side of a 
 question cannot fail to have an unfavourable ef-
 
 CIVIL LAW OF ENGLAND. 441 
 
 feet on the understanding ; the partialities he ac- 
 quires for doctrines for which he has accidentally 
 been led to contend at the bar, may sometimes 
 be traced through every period of his subsequent 
 judicial life; and what is still more melancholy 
 he is but too apt to give into practices, of the 
 discredit of which he is not sufficiently sensible at 
 the time, and cannot with decency express a due 
 degree of reprobation afterwards. If an advocate 
 remains at the bar until he has sounded all the 
 depths of practice, he should never be taken from 
 it. He has lost more than he has gained, and 
 more than by any pains or application he can 
 recover afterwards. Whether much practice at 
 the bar be the best preparation for a judge is 
 still a controverted question. Many of those 
 who fill the highest offices in the law in the dif- 
 ferent states in Europe have never practised as 
 barristers at all. Most of the judicial officers in 
 France in former times practised extremely little. 
 The mistaken partiality and preference which the 
 French have always shown to military rather than 
 judicial merit, has hitherto induced them to with- 
 hold their due portion of renown from a class of 
 men of the most distinguished worth, capacity, 
 and patriotism, who have ever risen up among 
 them. In Germany also the law faculties in the 
 universities, who were mostly if not altogether 
 composed of professors who had never practised, 
 were until 1815 the judicial tribunals to whom 
 questions of law were always referred in the last 
 resort. The law faculty of Saxony in the univer-
 
 442 ON THE PRESENT STATE OF THE 
 
 sity of Leipsic enjoys that dignity to the present 
 day. 
 
 Independently of the unsuitable habits and 
 qualities which a judge is apt to contract if he 
 has practised too long before he has been with- 
 drawn from the bar, the laborious duties of his 
 office require that he should be promoted while his 
 faculties of mind and body remain in undiminished 
 vigour. How long that may continue in aay in- 
 dividual instance, it seems impossible to antici- 
 pate. There can be no doubt that as long as the 
 body is able to sustain the mind, and the mind 
 itself suffers no decay, every accession of experi- 
 ence enhances the qualification of a judge for the 
 administration of justice. The mind of one is as 
 unbroken at 70, as that of another at 40 or 50, and 
 an abler judgment cannot easily be pointed out 
 either in respect of reasoning or expression, than 
 that which was delivered by Baron Wood in the 
 Exchequer in 1822, when he was on the brink of 
 fourscore.* This and other instances, among 
 whom the present Chancellor holds a conspicuous 
 place, seems to me to prove in the most conclusive 
 manner, that no period of life ought to be fixed, at 
 which a judge ought to be obliged to abdicate his 
 situation. It will be less invidious and more wise 
 to allow every individual case to rest upon its 
 own merits, as an unbending general rule would 
 have deprived the country of the services of some 
 of its judicial officers when they had in no respect 
 
 * Price's Reports, vol. xi. p. 270.
 
 CIVIL LAW OF ENGLAND. 443 
 
 diminished either in value or amount. These, 
 however, are exceptions to the ordinary course of 
 nature, which undoubtedly points out that judges 
 ought to be promoted early. If it is urged that it 
 is not till late that they have amassed a sufficient 
 stock of legal knowledge, it casts the heaviest 
 imputation on the whole legal system. It cannot 
 be denied that in this respect the state of the law 
 is as unfortunate for its practitioners as it is for the 
 country. They are in a more depressing condition 
 than those who devote themselves to any other 
 liberal pursuit. Divines, physicians, scholars, 
 poets, painters, statesmen, soldiers, and diploma- 
 tists, may all attain a full and correct knowledge 
 of their profession while the body has scarcely 
 passed its prime, and the mind is only advancing 
 to its greatest vigour. With the most persevering 
 application it is almost impossible such good for- 
 tune can befall an English lawyer. A practitioner 
 who wishes to acquire any thing beyond an 
 acquaintance with the technical routine of his 
 profession, is loaded with masses of print and 
 manuscript that would oppress a Jesuit or a Be- 
 nedictine. On however he is obliged to toil 
 through precedents and dicta, anxiously looking 
 for some friendly principle to guide him through 
 their mazes, until it too often happens that all 
 strength of body and every thing like real strength 
 of mind sinks under the exhausting labour. If 
 by reason of extraordinary force of constitution he 
 can struggle forward, at the mature age of 40 he 
 finds himself second or third counsel in a cause, 
 and still deficient in that ready recollection of
 
 444 ON THE PRESENT STATE OF THE 
 
 minute questions in Law or Equity which is ex- 
 pected of him. At 50 he becomes a leader, and 
 when on the brink of threescore, he glides into 
 a mastership in Chancery, or is elevated to a seat 
 on the Bench, where some have been seen to re- 
 main till they could scarcely totter up to it without 
 assistance. The consequence is, as may be seen 
 by the greater part of the appointments which 
 have been made within the last 10 or 20 years, 
 many of those who have been promoted have 
 either sunk the office, or they have sunk under it. 
 If the retiring pensions of the judges were granted 
 absolutely after 15 years' service, and not made op- 
 tional as they are by 39 Geo. 3. c. 1 10, this would 
 never happen. Younger men are now more required 
 asjudges than they have ever been before. Their 
 duties are more burdensome as well as difficult, 
 and corresponding strength and activity should 
 be prepared to meet them. A less extensive fund 
 of merely practical knowledge should be required, 
 and a moderate degree of experience would be 
 found to supply that which is indispensably neces- 
 sary. Provided therefore those whom it is intended 
 to make judges, give proofs of a judicial turn of 
 mind, and possess a solid acquaintance with the 
 general principles of law and the doctrines of that 
 particular department in which they are called 
 upon to preside, no trifling objections ought to 
 retard their elevation. Of the best and rarest gifts 
 they are already in possession, and diligence and 
 practice will soon supply them with those in 
 which they are defective. 
 
 The last and greatest quality of a judge, and
 
 CIVIL LAW OF ENGLAND. 445 
 
 that which adds the key-stone to all the rest, is his 
 integrity. In England the incorruptibility of the 
 judges is so universally acknowledged that in the 
 midst of all the obloquy which public men in every 
 free government must be content to suffer, their 
 personal purity has never yet been called in 
 question. There is great reason to believe that 
 the judges of other countries, especially those of 
 the highest order, have by no means been so 
 universally guilty of venality as is commonly ima- 
 gined. It is difficult to conceive that magistrates, 
 so powerful and independent as the Justizas of 
 Spain in the days of its glory, would have stooped 
 to acts of personal corruption. Whatever inferior 
 judges may have done in France, there is every 
 reason to be satisfied that the De Thous, the L'H6 - 
 pitals, the Segurs, the Moles, the D'Aguessaus, 
 the Lamoignons, and other high officers who 
 adorned the court of France during the 17th and 
 18th centuries, preserved their hands as pure as 
 any persons of the same rank among ourselves at 
 the present day. " Avouons le neanmoins," says 
 D'Aguesseau in one of those beautiful discourses 
 he delivered to the parliament at Paris, and which 
 every judge and advocate may read with profit, 
 " et disons a la gloire de la magistrature, que ja- 
 " mais la justice n'a eu la satisfaction de voir dans 
 " ses ministres tant de droiture et tant d'inte"grite. 
 " Des mains pures et innocentes offrent une culte 
 " agreable a ses yeux. La probit6 est devenue si 
 " commune, qu'elle n'est plus regarded comme une 
 " distinction. On rougiroit de n'6tre point ver-
 
 446 ON THE PRESENT STATE OF THE 
 
 " tueux ; on ne se glorifie point de l'6tre : et le 
 " vice non-seulement condamne mais inconnu 
 " dans cette auguste compagnie, est r^duit a se 
 " cacher dans des tribunaux obscurs, eloignes de 
 " la lumiere du senat."* In the country of Grotius, 
 Bynkershoeck, Voet, Vinnius, and so many other 
 distinguished international lawyers and civilians, 
 bribery was as little likely to prevail; and Meyer, 
 upon whose candour and accuracy there is every 
 reason to rely, has expressly denied its existence. 
 In that part of his valuable work which relates to 
 the institutions of his native country, he expresses 
 himself in the following terms, " Si nous avons du 
 ** tracer une peinture peu flatteuse des tribunaux 
 " des Pays Bas et surtout de la Hollande, c'est 
 " dans 1'indispensable necessite d'exposer les in- 
 ." stitutions commes elles 6toient : heureusement 
 " que dans 1'application, I'mtegrit6 des magistrats, 
 " et surtout leur incorruptibilit6, non-seulement 
 " temperait les efFets qu'on aurait pu craindre de 
 *' ces institutions, mais que telle tait l'austerit 
 " et la puissance des moeurs, que dans aucun pays 
 " de 1'Europe peut-etre la justice n'^tait adminis- 
 " tree avec plus d'equite."f These passages will 
 be read with satisfaction by all who love to hear 
 of whatever has conduced to the past, or may be 
 made to contribute to the future welfare of their 
 species. Among ourselves the personal purity 
 of the judges has for the last century and a half 
 
 * CEuvres dc D'Aguesseau, vol. i. p. 83. 8vo. Ed. 4mc Mercuriale. 
 t Esprit, Origine, et Progres des Institutions Judiciaires des 
 principaux pays de 1'Europe, torn. iv. p. 189-
 
 CIVIL LAW OF ENGLAND. 447 
 
 shone so conspicuous that we are apt to forget 
 the lateness of the period at which it arose to en- 
 hance the brightness of our national glory. In 
 1291, in the time of Edward I. all the judges were 
 fined but two, and many of them in very heavy 
 sums. " From this time," it is said, " the judges 
 " were obliged to swear at the entrance into their 
 " offices, that they would take no money or pre- 
 *' sent of any kind, except a breakfast, from such 
 " persons as had suits depending before them."* 
 It was afterwards ordained in parliament, in 
 1346, the time of Edward III. " that all the king's 
 " justices throughout his dominions should re- 
 " nounce and utterly forbear taking any pensions, 
 " fees, or any sort of gratuities, which before they 
 " used to receive, as well from lords spiritual and 
 " temporal as others, that so their hands being 
 " free from corruption, justice might be more im- 
 " partially and uprightly administered. "f A va- 
 riety of striking instances of the venality and mal- 
 practices of the judges during the 16th and 17th 
 centuries are collected by Luders in his Law 
 Tracts. One of the last instances on record of 
 presents being made to the Common Law judges 
 are two which occurred to Lord Hale. It is said 
 " that he insisted on paying a man for a buck as 
 " he had a suit before him ; and at Salisbury, the 
 " dean and chapter having, according to the cus- 
 
 * Hansard's Parliamentary History, vol. i. p. 38. 
 t Id. vol. i. p. 111. 
 
 | Luders' Law Tracts, p. 104140. Commons' Journals, 
 vol. x. p. 22 & 23. Barrington on the Statutes, p. 23.
 
 448 ON THE PRESENT STATE OF THE 
 
 " torn, presented him with 6 sugar loaves in his 
 " circuit, he made his servant pay for the sugar 
 " before he would try their cause.''* The sale of 
 offices in Chancery by the Lord Chancellor conti- 
 nued much later. The impeachment of Lord 
 Macclesfield for the sale of masterships is matter 
 of historical notoriety, and it redounds greatly 
 to the credit of Lord Cowper, that so late as 
 1706, he was the first Chancellor who refused 
 the annual presents made on new year's day to 
 the person who held the seals by those who prac- 
 tised in Chancery, and which amounted to no less 
 a sum than 1500 a year.-j* 
 
 To the honour of the judges and the state of 
 society in the times in which we live, pecuniary 
 corruption is not now an offence which is reasonably 
 to be apprehended. But that species of it which 
 consists in yielding to the wishes or solicitations of 
 courtiers and powerful private persons, is not less 
 degrading, or less anxiously to be guarded against. 
 In England it was long practised regularly and 
 avowedly. The Duke of Buckingham's letters to 
 Lord Bacon show that he had solicited that great 
 man repeatedly. The usage continued under 
 Charles I. which led to the following admirable 
 observations of Lord Clarendon on the agitation 
 created in the public mind by the subserviency of 
 the judges to that monarch, in his attempts to en- 
 force the payment of ship money. *' But when 
 
 * Burnet's Life of Sir M. Hale, p. 62. 
 
 f Burnet's Hist, of his own Times, vol. iv. p. 141. . . '.
 
 CIVIL LAW OF ENGLAND. 449 
 
 " they saw in a court of law (that law that gave 
 " them title to and possession of all they had) 
 " reasons of state urged as elements of law; 
 "judges as sharpsighted as ministers of state, and 
 " in the mysteries of state ; judgment of law 
 " grounded upon matter of fact, of which there 
 " was neither inquiry nor proof, and no reason 
 " given of the payment of the 30 shillings in 
 " question, but what included the estates of all 
 " the slanders by; they had no reason to hope 
 " that doctrine or the promoters of it, would be 
 " kept within any bounds, and it is no wonder 
 " that they, who had so little reason to. be pleased 
 " with their own condition, were no less solicitous 
 " for or apprehensive of the inconvenience that 
 " might attend any alteration." He subjoins, 
 " And here the damage cannot be expressed, 
 " that the crown and state sustained by the de- 
 " served reproach and infamy that attended the 
 "judges, by being made use of in this and like 
 " acts of power; there being no possibility to 
 " preserve the dignity, reverence, and estimation 
 *' of the laws themselves, but by the integrity 
 " and innocency of the judges. And no question, 
 " as the exorbitancy of the House of Commons in 
 " this next parliament, proceeded principally 
 " from their contempt of the laws, and that con- 
 " tempt from the scandal of that judgment; so 
 " the concurrence of the House of Peers in that 
 " fury, can be imputed to no one thing more, 
 " than the irreverence and scorn the judges were 
 " justly in, who had always been looked upon 
 
 G G
 
 450 ON THE PRESENT STATE OF THE 
 
 " there as the oracles of the law, and the best 
 " guides to assist the House in their opinions and 
 " actions ; and the Lords now thought themselves 
 " excused for swerving from the rules and cus- 
 " toms of their predecessors, (who in making and 
 " altering of laws, in judging of things and per- 
 " sons had always observed the advice and judg- 
 " rnent of those sages,) in not asking questions of 
 " those whom nobody would believe, thinking it 
 " a just reproach upon them, (who out of their 
 " courtship had submitted the mysteries and diffi- 
 " culties of the law to be measured by the stand- 
 " ard of what they called general reason, and ex- 
 " plained by the wisdom of state,) that they 
 " themselves should make use of the licence 
 " which others had taught them, and determine 
 " that to be law which they thought to be reason- 
 *' able or found to be convenient. If these men 
 " had preserved the simplicity of their ancestors, 
 " in severely and strictly defending the laws, 
 f * other men had observed the modesty of theirs, 
 " in humbly and dutifully obeying them."* 
 Burnet says that Charles II. used to solicit 
 the judges both for plaintiffs and defendants,']' 
 and it is mentioned by him in his life of Sir 
 M. Hale, " that he would never receive private 
 " addresses or recommendations from the great- 
 " est persons in any matter in which justice 
 " was- concerned.";}: Though this practice has 
 
 * Clarendon's History of the Rebellion, vol. i. p. 108. 8vo. Ed. 
 f Burnet' s History of his own Times, vol. ii. p. 14. 
 J Burnet's Life of Sir M. Hale, p. 60.
 
 CIVIL LAW OF ENGLAND. 451 
 
 been discontinued among us since the Revolution, 
 Barrington declared in 1775, " That England was 
 " perhaps the only country in Europe where the 
 " judges are not solicited in the face of the sun."* 
 It is to be hoped that it does not so universally 
 prevail now as it is alleged to have done then, 
 though it is to be feared that in many parts of the 
 continent it was a well known custom till a com- 
 paratively recent period. In this country corrupt 
 influence can scarcely be exercised over a judge, 
 except in two instances, in the causes of persons 
 whom the king or government personally favour, 
 or whose individual condemnation they desire 
 from motives of political animosity. This sort of 
 bias may exist in all ages and under all govern- 
 ments, and nothing but the moral character of 
 public authorities and the known integrity of the 
 judges can furnish any sufficient security against 
 it. " On ne le tentera pas, a la verit6, par 1'appat 
 " grossier d'un vil et honteux int6ret. Une ten- 
 " tation si basse, rduite & se cacher dans les 
 " tribunaux infe>ieurs, eloignes de la lumiere du 
 " s6nat, respectera T616vation du magistral supe"- 
 " rieur; et, a Dieu\ne plaise que nous fassions 
 " rougir ici sa fermet, en lui proposant une vic- 
 " toire si peu digne d'elle. Mais, rejettera-t-il 
 " avec une 6gale indignation ce poison mieux pre- 
 " par6 que 1'ambition lui pr^sente; et, aura-t-il 
 " la force de ne jamais boire dans cette coupe 
 " enchanted qui enivre tous les heros de la terre ? 
 
 * Barrington on the Statutes, p. 23.' 
 G (i 2
 
 452 ON THE PRESENT STATE OF THE 
 
 " Parlons sans figure : ne sera-t-il point du nom- 
 '* bre de ces magistrals qui aiment la justice, mais 
 " qui aiment encore plus leur fortune ? Tant que 
 *' ces deux mouvemens, qui partagent leur coeur, 
 " n'ont rien de contraire, ils suivent sans effort le 
 " penchant naturel qui les porte a la vertu ; mais 
 " bientdt le hasard fait naitre une de ces causes 
 " destinies a e'prouver la fermete" du magistrat. 
 " Un vent de faveur s'e'leve, et re'pand un air con- 
 " tagieux jusque dans le sanctuaire de la justice. 
 " Non que la timide vertu du magistrat passe en 
 " un moment jusqu'a 1'odieuse extre'mit^ de sa- 
 " crifier sans horreur son devoir a sa fortune : 
 " mais tel est, si Ton n'y prend garde, le progres 
 " insensible des mouvemens du coeur humain. Un 
 " desir secret de trouver le bon droit ou Ton voit 
 " le credit, s'^leve dans Tame du magistrat. II ne 
 " se de"fie point d'un sentiment ou il ne voit en- 
 " core rien de criminel, et dont il se flatte qu'il 
 " sera toujours le maitre. Cependant il se fami- 
 *' liarise avec ce d6sir ; il se prete avec plaisir a 
 " tout ce qui le favorise ; il ecoute avec une espece 
 *' de repugnance tout ce qui paroit le combattre ; 
 " s'il ne decide pas encore suivant 1'inspiration 
 " secrete de son coeur, il veut douter au moins, 
 " et souvent il a le malheur d'y r^ussir. Mais, 
 " dans ce doute recherch^, 1'esprit defend mal 
 " celui que son coeur a deja trahi. La balance 
 " de la justice echappe enfin des mains du foible 
 " magistrat ; il veut etre ferme, ou du moins il 
 " croit vouloir 1'etre ; mais il ne Test jamais ; et, 
 " toujours ing6nieux a trouver des raisons pour
 
 CIVIL LAW OF ENGLAND. 453 
 
 " justifier sa foiblesse, il ne trouve point d'occa- 
 " sions ou il se croie oblig6 de faire usage de sa 
 " force."* The conduct of George III. on his acces- 
 sion to the throne, in intimating a desire to make 
 the judges independent of the demise of the 
 crown, deserves distinguished commendation. If 
 it does not do all that can be wished, it does 
 nearly as much as the sovereign could accomplish, 
 and both the sentiments by which the measure 
 was dictated and those with which it was received, 
 created an effect upon the public mind which will 
 not soon cease to operate. The object which the 
 sovereign had then in view, had the merit of being 
 both wise and patriotic. Of all the odious charac- 
 ters that can be named, a time-serving judge is the 
 most detestable. It is said to have been an ex- 
 clamation of Lord Hale's, that twelve red coats in 
 Westminster Hall could do more mischief to 
 the nation than as many thousand in the field/j" 
 Whatever might have been the case in Lord Hale's 
 time, none such could occur now. In a country 
 where jury trial is instituted, and juries are bold 
 enough to do their duty, there cannot be a greater 
 error than to suppose that a political judge can 
 ever make a useful tool. The very reverse ap- 
 proaches more nearly to the truth. " I have 
 " heard him say," it is observed by Lord Keeper 
 North, " that while Hale was Chief Baron of 
 " the Exchequer, by means of his great learning, 
 
 * CEuvres <)c D'Agucsscau, torn. i. p. 189. I5me CIcrcur. 
 f Maddock's Life of Lord Sowers, p. 273.
 
 454 ON THE PRESENT STATE OF THE 
 
 " even against his inclination, he did the crown 
 *' more service in that court, than any other in his 
 " place had done, with all their good will and less 
 " knowledge."* The conduct here described will 
 always meet with a similar result, and nothing 
 can be more weak, as well as unprincipled, than 
 to suggest that judges ought ever to be blamed 
 for not having sufficiently exerted themselves to 
 procure the conviction or acquittal of those for or 
 against whom government is presumed to feel an 
 interest. The judge who without fear or favour 
 firmly discharges his duty between party and 
 party, or between a subject and the crown, will 
 invariably prove most serviceable to every admi- 
 nistration. He will, as happened in the case of 
 Lord Hale, obtain more verdicts for the crown, 
 and give greater satisfaction to the public. By 
 uniformly respecting, honouring, and rewarding 
 the integrity of the judges, the government will 
 best consult its own stability as well as the good 
 of the country. In order to this it has frequently 
 been supposed, that the independence of the 
 judges would be still greater if they never were 
 removed from one court to another, nor allowed 
 to occupy any higher place in it than that to which 
 they were originally preferred. This might have 
 its use; but as a general rule, the disadvantages 
 would perhaps preponderate over the benefits. 
 A puisne judge on the death or advancement of a 
 Chief Justice may be the best successor that can 
 
 * North's Life of Lord Keeper North, vol. i. p. 113. 8vo. Ed.
 
 CIVIL LAW OF ENGLAND. 455 
 
 be found, and may be less likely to become a time 
 server, than a person who from a private station 
 is at once put at the head of the court, whom the 
 crown or the government has still the power of 
 tempting by so many other allurements. The 
 lofty and independent character which all who are 
 elevated to the rank of judges, ought to be known 
 to possess, seems to afford a more general as well 
 as effectual security against undue partiality, than 
 any check of this description. 
 
 The last and most dangerous, because most 
 secret judicial influence which ought to be 
 guarded against, is that which arises from the 
 judge's own prejudices and prepossessions. It is 
 impossible to enumerate the varieties of these 
 which may spring up in the human mind. They 
 may influence him with respect to parties, practi- 
 tioners, classes of causes, and .even his own legal 
 opinions. There is no occasion on which he may 
 not be mislead by them, but most easily where he 
 is the only judge in the court in which he sits. 
 It is the fear of the existence of this concealed 
 source of irregularity, which makes it so desirable 
 for those by whom judges are appointed, to be 
 well acquainted with their real character. A 
 patient and correct cast of understanding is a ju- 
 dicial qualification, scarcely less essential than 
 capacity and knowledge. To check the peculia- 
 rities or inequalities in legal opinions, to which a 
 judge may give way in his judgments, it is desira- 
 ble that he should as far as possible refer them 
 to some controuling general principle. This is
 
 45G OX THE PRESENT STATE OF THE 
 
 more necessary to be done in courts of Equity in 
 England, than perhaps in any other known tri- 
 bunals. Not only does the judge enjoy great 
 latitude by sitting alone, but it is much increased 
 by the nature of the causes which he is called 
 upon to determine. Where the judgment is made 
 to proceed entirely on special circumstances, it is 
 easy for a judge without supporting one bad or 
 overturning one sound principle to decide for any 
 party he may be disposed to favour. However 
 strange this may seem, close attention to the pro- 
 ceedings of courts of Equity will shew it to be true, 
 and it places in the strongest light, the value 
 of that singleness of heart and intention which 
 is so valuable an auxiliary to a judicial under- 
 standing. 
 
 Having said so much of the qualities which the 
 public expect in a judge, it may now be proper to 
 advert to those marks of attention he has a right 
 to expect from them. The first of these is, to 
 take care that he should not be overlaboured. 
 In order that the labour of judges should not be 
 excessive, it is necessary that there should be a 
 sufficient number of them to discharge the duty 
 which the exigency of the state requires. This 
 must depend on the circumstances of each parti- 
 cular state; and of whatever number of judges 
 courts of justice may consist, the number of courts 
 should be sufficient to dispatch the business which 
 may regularly be brought before them. If there 
 are more than that, the mischief is nearly as great 
 as if they are too few. Of too many judges
 
 CIVIL LAW OF ENGLAND. . 457 
 
 France may be quoted as an example. That 
 country has no fewer than 360 tribunals of the 
 first instance, one for each arrondissement, and as 
 the number of judges in each of these tribunals 
 varies from 3 to 56, they are sometimes split into 
 separate chambers for the dispatch of business, 
 that of Paris being subdivided into seven. It has 
 also 26 tribunals of the second instance, called 
 Cours Royales, the number of judges in which vary 
 from 20 to 50, and these are also as well as the 
 preceding class sometimes separated into several 
 chambers for the dispatch of business, that of 
 Paris being subdivided into five. The Cour de 
 Cassation, which serves as the tribunal of third in- 
 stance for the whole kingdom, consists of a first 
 president, three presidents, and 45 judges, who 
 are again distributed into three sections. As far 
 as an opinion of the judicature of a country can 
 be formed without personal experience of its 
 operation, the number of courts appears to be 
 much too large for the wealth and population of 
 such a territory as France. It seems impossible 
 that so many courts and judges, if properly re- 
 gulated, should be required to discharge the 
 business which an agricultural and moderately 
 wealthy country of such extent can bring before 
 them. If this is the case they will unavoidably 
 become inefficient ; the number of those who are 
 inefficient will diminish the credit and respecta- 
 bility of the rest, and cause bad judges to be 
 introduced into the judicial body with more faci- 
 lity. If there arc too many judges in France the
 
 458 ON THE PRESENT STATE OF THE 
 
 mistake in England is of a totally opposite 
 tendency. Both in Courts of Common Law 
 and Equity, and especially in the latter, the 
 number of judges is at present altogether insuf- 
 ficient to discharge the current business of the 
 country. There can be no doubt that the names, 
 numbers, and occupations of judges when they 
 have once been settled, and still more when they 
 have become known and endeared to the people, 
 ought as long as possible to remain unsettled. 
 This applies particularly to the 12 Common Law 
 judges, towards whom an extraordinary degree of 
 veneration is manifested in every district of the 
 country. But if their present number is found to 
 be decidedly insufficient to dispatch the increase 
 of business which is created by the growing trade 
 and population of the country, then it would be 
 better to resolve upon such a thorough alteration 
 of the judicial system as would supersede any 
 other for a number of years to come. All com- 
 prehensive views seem to have been neglected in 
 every change in the law, whether great or small, 
 which has lately been proposed or effected. In 
 the establishment of courts of Conscience, a se- 
 parate enactment has been passed for each of 
 the 416 parishes, hundreds or cities, wapentakes, 
 boroughs, hamlets, and liberties, in England and 
 Wales,* to which these local jurisdictions extend. 
 The amount to which they have cognizance seems 
 completely arbitrary. It is of great consequence 
 
 * Pratt's Abstract of Acts of Parliament for Establishment of 
 Courts of Requests, p. 243. 247.
 
 CIVIL LAW OF ENGLAND. 459 
 
 that there should be one uniform standard, but in 
 the older acts it extends generally to 40s., in the 
 later acts to 5,* and in one to as much as flO.'f 
 It should either not have gone so far, or a great 
 deal farther. Every part of the system of judi- 
 cature bears marks of unconnected and disjointed 
 efforts. There is no uniformity or consistency 
 in any of its branches. The same defect is visible 
 in its higher departments, and the same want of 
 efficiency, after the new arrangements have been 
 long completed. Within the last ten years, alter- 
 ations of the most essential sort have been 
 made both upon courts of Equity and Common 
 Law, at the same time that they have proved 
 completely inadequate. A Vice-Chancellor was 
 appointed by 53 G. 3. c. 24. The Chief Baron 
 of Exchequer was empowered by 57 G. 3. c. 18. 
 to sit alone in Equity, while the rest of the Barons 
 continued the former ordinary business of the 
 court of Exchequer. By 57 G. 3. c. 11. one of 
 the judges of King's Bench is allowed to sit in the 
 bail Court while the three other judges proceed 
 with the business of the Court. By the 1 and 2 
 G. 4. c. 16, the judges of King's Bench and Com- 
 mon Pleas are empowered to hold sittings before 
 and after term at other places than in Westminster 
 Hall: and by 1 G. 4. c. 21 and 25, other judges 
 than the chief justices of King's Bench and Com- 
 mon Pleas are empowered to try jury causes in 
 their absence ; or any Justice of the King's Bench 
 
 * Pratt's Abstract of Acts of Parliament for Establishment of 
 Courts of Requests, p. 175 ct scq. J Ib. 169.
 
 460 ON THE PRESENT STATE OF THE 
 
 at the request of the Chief Justice may try them 
 at the same time provided the press of business 
 should require it. To all these changes, there are 
 several extremely strong objections. The antient 
 constitution of our courts of justice has been 
 nearly as much impaired as if they had undergone 
 a total transformation : there have already been 
 five or six changes instead of one : the business 
 of the country is not done ; and yet the judges 
 continue vastly overlaboured. By no arrangement 
 of business or distribution of the judges can they 
 be enabled to overtake their duty. The great 
 mistake which has all along been committed 
 is, that more is expected of them than human 
 strengthand understanding can perform. There are 
 only twelve supreme judges for the administration 
 of Common Law, and three for the administration 
 of Equity, and these are manifestly unable to dis- 
 patch the business of their several jurisdictions. 
 Between their sittings in London before term, in 
 term, after term, in the bail Court, in Newgate, at 
 nisiprius, and at the Chambers; the two circuits 
 they make throughout England, the third annual 
 criminal circuit, the Common Law judges, with 
 the exception of the Barons of Exchequer, have 
 very few days left throughout the year either for 
 relaxation or improvement. In addition to this, 
 as they are all upon duty at the same time, if it 
 should happen that any of them becomes indis- 
 posed, a contract is made with some of the ser- 
 jeants at law, king's counsel, or barristers, to 
 perform the duties of a judge for a certain
 
 CIVIL LAW OF ENGLAND. 461 
 
 length of time, to the obvious discredit of the 
 whole system of English judicature. It is poor 
 economy and worse policy. It never succeeds to 
 see a man one week on the bench and another 
 at the bar. It is an union of characters which 
 the public neither approves nor comprehends, 
 and in this instance their judgment is right, 
 though they may not always be able to assign 
 the reasons for it. This arrangement is made 
 even more objectionable than there is any neces- 
 sity for it to be. The best men that can be pro- 
 cured ought to preside as judges, and therefore, 
 if there is any deficiency among them, those bar- 
 risters ought to be selected who are most likely 
 to succeed to that rank upon the next vacancy. 
 The very reverse however happens. Those who 
 are employed to supply the place of judges who 
 are absent from accident or indisposition, are 
 rarely promoted to the dignity of permanent 
 judges. From this it necessarily follows, either 
 that .those judges who are permanent or those 
 who are temporary are not the ablest lawyers at 
 the bar, and whichever of these alternatives coin- 
 cides with the fact, the public must to some 
 degree suffer. Indeed no two things can be 
 more completely contrasted, than the fatigue 
 of an English Common Law judge now with 
 what it was several centuries ago. Their oc- 
 cupations are thus described by Fortescue : 
 " Scire te etiam cupio, quod justiciarii Angliae 
 " non sedent in curiis Regis nisi per tres boras 
 " in die, scilicet ab honi octava ante meridiem
 
 462 ON THE PRESENT STATE OF THE 
 
 " usque horam undecimam completam, quia post 
 " meridiem, Curise illae non tenentur. Sed placi- 
 " tantes tune se devertunt ad Pervisum, et alibi, 
 " consulentes cum Servientibus ad Legem, et aliis 
 " Consiliariis suis. Quare Justiciarii, postquam 
 *' se refecerunt, totum diei residuum pertranseunt 
 " studendo in legibus, sacram legendo scripturam, 
 " et aliter ad eorum libitum contemplando, ut 
 " vita ipsorum plus contemplativa videatur quam 
 " activa. Sicque quietam illi vitam agunt, ab 
 " omni sollicitudine et mundi turbinibus semo- 
 " tarn."* Their labours subsequently increased, 
 and in his time Lord Hale seems to have thought 
 them abundantly heavy. Though it is well known 
 that he was not a man to decline fatigue unneces- 
 sarily, yet " When Penruddock's trial was brought 
 " on, there was a special embassy sent to him 
 " requesting him to assist at it. It was vacation- 
 " time, and he was at his country house at Al- 
 " derley. He plainly refused to go, and said 
 " the four terms and two circuits were enough, 
 " and the little interval that was between was 
 " little enough for their private affairs."! So 
 much of that interval which Lord Hale thought 
 little, has been gradually pared away, that Lord 
 Ellenborough more than once complained, " that 
 " a chief justice now toils worse than a galley 
 " slave," and several other judges are so worn 
 down by labour that the same observation might 
 
 * Fortescue de Laudibus Lcguin Angliae, cap. 51. 
 t Burtict's Life of Sir Matthew Hale, p. 45.
 
 CIVIL LAW OF ENGLAND. 463 
 
 be applied to them with equal justice. With 
 all this they . are unable to dispatch business. 
 It is almost always in arrear in the Common 
 Law Courts in Westminster Hall, and there is 
 almost always a number of causes remaining 
 undisposed of at the end of each circuit. At 
 the very last Autumn assizes in 1824, several 
 important causes are said to have been postponed 
 after very heavy expense had been thrown away in 
 feeing counsel and collecting witnesses, and this 
 for no other reason but because the judges had not 
 time to overtake them. In Chancery, matters are 
 in a still worse predicament both for the suitor and 
 the judge. The labours of the judges are there less 
 various than those of their brethren in the courts 
 of Common Law, but in return they are even more 
 constant and severe. With all this, the delay 
 sustained by the suitor is a great deal more dis- 
 tressing. It appears from the list of causes re- 
 gularly circulated for the convenience of gentle- 
 men at the bar, that at the commencement of the 
 sittings in the beginning of November 1824, the 
 arrears in the court of Chancery alone, consisted 
 of 400 causes, 120 appeals and rehearings, up- 
 wards of 200 exceptions and further directions ; 
 and 30 causes which had been fully heard, but 
 in which the judgment of the Court remained un- 
 delivered. In January 1825, the arrears before 
 the three judges in the court of Chancery stood 
 thus: G95 causes; 475 lunatic, bankrupt, and 
 miscellaneous petitions ; 238 causes upon excep- 
 tions and for further directions; 43 pleas and
 
 4G4 ON THE PRESENT STATE OF THE 
 
 demurrers ; and 126 appeals: making all together 
 1577 separate subjects for consideration and dis- 
 cussion, and the final settlement of which would 
 be sufficient to occupy the time of the three 
 judges of which the Court consists, for at least 
 three years to come, though no fresh business 
 were to come before them. It appears therefore 
 that the arrears of business in the courts of Equity 
 is steadily accumulating, and that the present 
 number of the judges is utterly incompetent to 
 discharge it. It is by no means desirable that 
 they should attempt to do so. The bold and ra- 
 pid dispatch of business is at first sight captiva- 
 ting and imposing. It prevents weariness in the 
 spectator, and seems to indicate confidence and 
 capacity in the judges. But business disposed of in 
 this way is seldom disposed of satisfactorily or cor- 
 rectly. It induces judges at Common Law to drive 
 causes to arbitration, and in Equity to send them 
 to a jury, and in both, to decide them when they 
 have been but half examined. It is the duty of a 
 judge to be as little dilatory as he can, but the 
 difficulties urged in argument and suggested by 
 his own mind make it impossible to decide causes 
 with rapidity. " In England," says Burke, " we 
 " cannot work so hard as Frenchmen. Frequent 
 " relaxation is necessary to us. You are natu- 
 " rally more intense in your application. I did 
 " not know this part of your national character 
 " until I went into France in 1773. At present 
 " this your disposition to labour is rather in- 
 " creased than lessened. In your Assembly you
 
 CIVIL LAW OF ENGLAND. 465 
 
 " do not allow yourselves a recess even on Sun- 
 " days. We have two days in the week, besides 
 " the festivals; and besides five or six months of 
 " the summer and autumn. This continued un- 
 " remitted effort of the members of your Assem- 
 " bly, I take to be one among the causes of the 
 " mischief they have done. They who always 
 " labour can have no true judgment. You never 
 " give yourselves time to cool. You can never 
 " survey from its proper point of sight the work 
 " you have finished, before you decree its final 
 " execution. You can never plan the future by 
 " the past. You never go into the country, so- 
 " berly and dispassionately to observe the effect 
 " of your measures on their objects. These are 
 " amongst the effects of unremitted labour, when 
 " men exhaust their attention, burn out their can- 
 " dies, and are left in the dark. Malo meorum 
 " negligentiam quam istorum obscuram diligentiam."* 
 These observations are universally true, and ap- 
 ply with fully as much force to judicial labours as 
 to those of any other sort. It is impossible that 
 the business which now comes before courts of 
 Equity should be done well if it is done quickly. 
 The public is apt to imagine that the only labour 
 of a judge consists in listening to the arguments 
 which are addressed to him on the bench, and that 
 he must necessarily be prepared to proclaim his 
 judgment as soon as these have ended. So far is 
 this from being the case, that it is only after he has 
 
 * Burke's Letler to a Member of the National Assembly. 
 H II
 
 460 ON THE PRESENT STATE OF THE 
 
 left the bench that his severest duties are be- 
 ginning. Documents have then to be read, facts 
 ascertained, and points of law investigated and 
 digested ; and if this process is conscientiously 
 performed, his progress never can be rapid. It 
 requires much time and attention thoroughly to 
 understand and estimate the facts of a case ; and 
 to the diligence and patience with which this is 
 done, much of the excellence of English judges is 
 owing. Whether oral or written pleadings are 
 most useful for that purpose has lately been very 
 keenly agitated. It is curious that while one of 
 the objects of the commission which was issued in 
 1823 to inquire into the judicial procedure in Scot- 
 land, implied a strong superiority of oral pleading 
 to that which is written, an opinion exactly the 
 reverse should have been expressed by St. Pierre 
 with respect to the merits of the oral and written 
 pleadings which were formerly used in France. 
 " II paroit que les parlemens diminuent tous les 
 " jours, et avec raison, le nombre des proces 
 " d'audience, pour les juger par la voie du rap- 
 " port. La voie d'audience est une reste des 
 " mceurs grossieres de nos ancetres, qui pour la 
 " plupart ne savoient point e*crire. Plusieurs de 
 " hos anciens rois, et Charlemagne lui-meme, ne 
 " savoient pas ecrire. II n'y avoit presque alors 
 " que la voie d'audience pour juger les affaires ; 
 " mais a mesure que l'6criture est devenue com- 
 " mune, on a trouv plus de surete a juger les pro- 
 " ces sur les Ventures, que sur les plaidoyers. Les 
 " preuves des faits contested s'epluchent bien plus
 
 CIVIL LAW OF ENGLAND. 467 
 
 " exactement en lisant et en relisant les pieces pro- 
 " duites, qu'en ecoutant des avocats qui souvent 
 " les embrouillent expres." Various other rea- 
 sons are assigned by him for the superiority of 
 written over oral pleadings, to which he at last 
 adds this question " Mais, me dira-t-on, quelles 
 " sortes de causes doivent etre juge'es en audience ? 
 '* Je croi, que nulle affaire sera si bien jugee en 
 " audience qu'au rapport."* And many people 
 will think that his judgment is extremely well 
 founded. A mixture of the two seems best, but 
 in difficult cases both the beginning and end of all 
 judicial proceedings ought to be in writing. Not 
 only ought a judge to have leisure either by written 
 or oral pleadings to make himself acquainted with 
 the bearings of the facts of the case upon one ano- 
 ther, but he ought then to prepare his judgment; 
 and when that judgment has been prepared, it 
 ought as expeditiously as possible to be delivered. 
 The time and manner in which judgments are de- 
 livered cannot be watched with too much atten- 
 tion. The time ought to be certain, in order that 
 parties and counsel may be present if they think 
 fit ; and it ought not to be too long postponed, in 
 order that the principal arguments relied upon 
 may not have escaped the judge's memory. The 
 delivery of the judgment is of greater conse- 
 quence than it has usually been reckoned. I 
 have known more than one cause in which judg- 
 ment was given no less than seven-and-twenty 
 
 * Mcmoire pour dim. les Procfcs, 232237- 
 H H 2
 
 468 ON THE PRESENT STATE OF THE 
 
 months after the cause was heard, and at last it 
 consisted of nothing more than a simple affirma- 
 tion of the court below, without either statement 
 or reasoning.* However sound the judgment 
 itself might be, it is not possible, that at such a 
 distance, a judgment so pronounced could be 
 completely satisfactory. But if a judge is to pre- 
 pare his judgments within a reasonable period, 
 he can neither be expected to be perpetually oc- 
 cupied in hearing pleadings in court, nor in read- 
 ing papers out of it. In addition to the space 
 which is necessary for the preparation of his de- 
 cisions, he must have leisure to reflect upon the 
 spirit and state of the system of jurisprudence he 
 is called upon to administer, and also a little 
 tempus subsecivum to refresh and improve his 
 mind by general study. If it should be asked 
 how many judges all this would require, the only 
 answer that can be given is, neither more nor 
 fewer than are necessary to dispatch the busi- 
 ness. Both suitors and judges have an indis- 
 putable claim upon the government of the coun- 
 try that it should be kept up to this number. 
 Suitors have a right to ask that their suits should 
 be determined with all reasonable expedition, 
 and in the exact order in wjiich they are brought 
 forward for adjudication. It is of no consequence 
 to the suitor, whether the delay arises from the 
 want of judges or the system of judicature. If 
 the expense, vexation, or delay of justice is such 
 
 * Bligh's Reports in the House of Lords, v. ii. p. 710.
 
 CIVIL LAW OF ENGLAND. 469 
 
 that it amounts to a denial of it altogether, that is 
 a grievance of the extent of which the individual 
 who suffers it is as competent a judge as any other 
 person, and demanding correction as loudly as any 
 act of oppression to which he can be subjected. 
 Judges have a right to ask that it should be cor- 
 rected also, because they are blamed for not doing 
 that which no individuals in their place could do ; 
 because much of what they do must be done in- 
 sufficiently; and because so much must in some 
 way or other be done, that they continue to be 
 exhausted by their labour. 
 
 As judges ought not to be overlaboured, they 
 ought also to be liberally rewarded. That the 
 power of administering justice should ever have 
 been put up to sale, now affords matter of sur- 
 prise and humiliation. The introduction of this 
 practice into Europe is accounted for by Meyer 
 in the following manner : " Francois I. dans un 
 " besoin extremement urgent, press6 par les 
 " Suisses, auxquels il devait de Targent, et dont 
 " il voulait se concilier 1'appui pour la guerre des 
 " Milanais, fut celui qui donna 1'exemple de ven- 
 " dre les charges de judicature. II cr6a vingt 
 " places de conseiller au parlement de Paris et 
 " trente dans les parlemens de province, et les 
 " rois ses successeurs ne tarderent pas a 1'imiter. 
 " Les parlemens refuserent, dans les premiers 
 " momens, de recevoir leurs nouveaux confreres, 
 " qu'ils regardoient, non sans raison, comme des 
 " intrus indignes de sieger sur les fleurs de lis 
 " avec des magistrats que ne devoient leurs
 
 470 ON THE PRESENT STATE OF THE 
 
 " charges qu'a leur merite ou a leur naissance : 
 " mais le roi savait faire respecter ses volont^s, 
 " et par la suite, tous ou la grande majorit^ des 
 " magistrats ne retinrent leurs charges qu'a titre 
 " d'achat ou de succession."* It has lately been 
 alleged that this practice was productive of no 
 great public inconvenience, and did not lead to 
 any private corruption.! On the other hand St. 
 Pierre admits the inconvenience, and insinuates 
 that at least occasional corruption must have been 
 almost unavoidable : " On ne peut disconvenir 
 " que ce ne soit un grand inconvenient dans un 
 " tat, que 1'emploi de juge et le droit de juger 
 " les differens des citoyens soit mis a 1'enchere, 
 " et soit donn non a celui qui a le plus de capa- 
 " cite* et d'equite", mais au plus offrant et dernier 
 " ench^risseur et au plus riche, quoique dix fois 
 " moins eclaire" et dix fois moins equitable. D'un 
 " autre cot6 c'6toit un autre grand inconvenient il 
 " y a 200 ans, de voir que les j uges 6toient nomine" s 
 "- a la recommendation des favoris, des maitresses, 
 " des personnes puissantes et accreditees, qui ne 
 " pouvoient par comparer le merite de tous les 
 " pr^tendans, et que ces emplois si consideVa- 
 " bles dans Tetat etoient donnes non au plus 
 " habile et au plus vertueux, mais a celui qui 
 " par sa parente et par ses amis ou par son ar- 
 *' gent avoit le plus de faveur a la cour, quoiqu'il 
 
 * Meyer, Esprit des Institutions judiciaires des principaux Pays 
 de 1'Europe, torn. iii. p. 293. 
 
 f Butler's Reminiscences, p. 37 and 38.
 
 CIVIL LAW OF ENGLAND. 471 
 
 " fut dix fois moins habile, et dix fois moins ver- 
 *' tueux. Je prens done les choses dans le degres 
 " d'abus ou elles sont. Je ne me propose pas 
 " d'dter tout d'un coup un grand abus inveter6, 
 *' mais de le diminuer peu a peu tous les jours. 
 " En general a merite personnel 6gal, il est plus 
 " a propos pour le bien public, que les riches et 
 " les nobles soient juges que les pauvres et les 
 " roturiers. Le riche peut facilement se passer 
 " de petits presens, le pauvre moins facilement. 
 " Mais c'est un grand inconvenient, que ce soit le 
 " prix seul, qui decide du choix entre quatre con- 
 *' currens, et que le plus riche, quoique le moins 
 " propre, pour 100 pistoles de plus, sur 40 ou 
 " 50,000 francs, soit prefer^ au plus propre. Car 
 "*il faut compter qu'entre quatre concurrens, il y a 
 " quelquefois une difference de quadruple en me- 
 " rite personnel."* And in another passage of 
 the same treatise he gives this very extraordinary 
 reason for preferring written pleadings to those 
 which are oral : " Un juge en opinant en particu- 
 " Her et sous le secret dans la chambre du rap- 
 " port, opine avec plus de libert, parce qu'il 
 " craint moins que son avis soit reve!6 par ses 
 " confreres."! It is absolutely impossible that 
 the administration could have been incorrupt, 
 where secrecy became the protection of a judge's 
 integrity. In this country, and I believe every 
 
 * St. Pierre, Mem. pour diminuer le Nombrc des Proces, p. 226. 
 t Id. p. 236. and see also 235.
 
 472 ON THE PRESENT STATE OF THE 
 
 where else, the sale of judicial situations has now 
 ceased. That of ministerial situations in courts of 
 justice still continues in this country, though it 
 is to be hoped it will soon be totally abolished. 
 A judge ought to have nothing to do with the 
 sale of any office, or with fees exacted in his 
 court. There is no reason why the rule should 
 not be extended to the Chancellor, Chief Jus- 
 tices of the King's Bench and Common Pleas, and 
 Chief Baron of the Exchequer. These officers 
 may be as little influenced by the emoluments 
 they derive from these sources as persons in their 
 circumstances can possibly be ; but no man, let 
 his rank and character be what it may, is proof 
 against the temptation of interest; and it is far 
 better to evade than resist the suspicion of such a 
 bias. But while it seems manifestly expedient to 
 cut off all indirect sources of emolument, the 
 country should make up its mind to provide an 
 adequate compensation. The able and incorrupt 
 administration of justice must always be so fa- 
 tiguing and important an office, that judges are 
 entitled to a very high remuneration. In England 
 none of the judges are paid too much, and the 
 greater part of them very insufficiently. The point 
 is one on which extremely various opinions are 
 entertained ; but both on account of themselves 
 and their families, there seems much reason for 
 believing that their salaries ought to be as high as 
 their country can afford. Perhaps a good deal 
 ought to depend on the form of government un- 
 der which they live. In a republic, the salaries
 
 CIVIL LAW OF ENGLAND. 473 
 
 of judges may be much smaller than under a 
 monarchy. In a republic, all consideration de- 
 pends upon the public station which the indivi- 
 dual holds. Neither wealth nor hereditary rank 
 can enter into competition with it. In the United 
 States of North America accordingly, where the 
 duties of judges seem to be extremely well per- 
 formed, it is said the salaries of the best paid 
 judges do not amount to more than from 800/. 
 to 1200/. a year. Though the value of money 
 is low in that quarter of the world, this may* 
 be quite sufficient where the head of the Go- 
 vernment only receives annually about 5000/. 
 In a monarchical government on the other hand, 
 where primogeniture prevails, and titles and of- 
 fices of honour abound, the just demands both 
 on account of rank and salary rise a great deal 
 higher. In the kingdom of France the salaries of 
 the ordinary judges of the lowest courts, or those 
 of the third instance, vary from 1,200 francs a 
 year to 6,000, or from 50/. to 240/. Those of the 
 Presidents run from 15,000 francs to 3Q,000, 
 or from 600/. to 1440/. Those of the ordinary 
 judges of the courts of the second instance, from 
 4,200 francs a year to 8,000, or from 168/. to 320/. 
 The Presidents of these courts have a fourth more 
 than the ordinary judges, and the first Presidents 
 from 15,000 francs to 36,000, or from 600/. to 1440/. 
 In the supreme court, or that of the third instance, 
 the first President has 30,000 francs, or 1200/.; 
 the Presidents 17,000 francs a year, or 680/. and 
 an ordinary judge 15,000 francs, or 600/. The
 
 474 ON THE PRESENT STATE OF THE 
 
 Chancellor is said to have 180,000 francs a year, 
 or 7,200/., besides 50,000 francs, or 2000/. a year 
 for his table. His emoluments all together are said 
 to amount to nearly 300,000 francs a year, or 
 12,000/. a year. Most of these salaries appear to 
 be extremely inadequate in such a country as 
 France, and cannot help exposing the lower ranks 
 of judges to temptations which they must find it 
 difficult to resist. If there were only half the 
 number of judges with double the amount of sa- 
 lary, a stranger would think it more likely to en- 
 hance both their integrity and ability. In England 
 the puisne Common Law judges have 4,000/. a 
 year each, about 1 OOO/. of which is said to be 
 expended in the course of the spring and autumn 
 circuits. The Chief Justice of the Common Pleas 
 and Chief Baron of the Exchequer have 5000/. 
 a year each; the Vice-Chancellor 5000/. ; the 
 Master of the Rolls somewhat more, and the 
 Chief Justice of the King's Bench about 6000/. 
 besides fees. The emoluments of the Lord Chan- 
 cellor as head of the court of Chancery, together 
 with those he derives from the speakership of the 
 House of Lords, are not exactly known. Whatever 
 they are, they cannot be too large, and considering 
 the sums of money which are gained at the bar, 
 and the general wealth and condition of society, 
 the sums which the judges generally receive are 
 surely inadequate to support their dignity. It is 
 not becoming in a judge to be much in public, and 
 he will best consult the reverence which is due to 
 his character by pursuing a private and reserved
 
 CIVIL LAW OF ENGLAND. 475 
 
 course of life. But both for the sake of his fa- 
 mily and his own relaxation, as well as to make 
 himself acquainted with the perpetual changes 
 which are taking place in custom and opinion, 
 and to maintain a familiarity with liberal inquiry 
 and discussion, he ought to be enabled by his 
 rank and emoluments to mix occasionally on an 
 easy footing with some of the most considerable 
 persons both in point of rank and fortune in the 
 state. The ignorance which those who appoint 
 the judges sometimes evince both of them and 
 every thing belonging to their order, might and 
 ought to be dispelled by the increase of private 
 and improving intercourse. The present neglect 
 of the splendour which the Chancellor used to 
 maintain, and the interruption of those opportu- 
 nities of social intercourse which it was supposed 
 to be the duty of his office to afford, have also 
 been injurious to the profession of the law, and 
 particularly to the judges. Unless greater gene- 
 rosity and attention is shewn to them hereafter 
 than has lately been, neither they nor their fami- 
 lies will long answer the description given of them 
 500 years ago by Fortescue, and which till lately 
 they have continued to deserve. *' Unde et 
 " hoc genus gratiae videamus subsecutum, quod 
 " vix eorum aliquis sine exitu decedat, quod justis 
 " magnae et quasi appropriate benedictionis Dei 
 " est. Mihi quoque non minimi muneris divini 
 " censetur esse pensandum, quod ex judicum 
 " sobole, plures de proceribus et magnatibus 
 " regni hucusque prodierunt, quam de aliquo alio
 
 476 ON THE PRESENT STATE OF THE 
 
 " statu hominum regni, qui se prudentia et indus- 
 " tria propria, opulentos, inclytos, nobilesque 
 " fecerunt. Quanquam mercatorum status, quo- 
 " rum aliqui sunt qui omnibus justiciariis regni 
 " prsestant divitiis, judicum numerum in milli- 
 " bus hominum excedat. Nam fortunae, quae 
 " nihil est, istud ascribi non poterit, sed divinae so- 
 " lum benedictioni arbitror tribuendum."* There 
 can be no doubt, that the mere augmentation of 
 the salaries of the judges will not ensure the con- 
 stant supply of the elevated character and attain- 
 ments which judges ought to possess. But it is 
 equally true on the other hand that it affords the 
 best chance of obtaining them, and also of display- 
 ing them to advantage when obtained. The bench 
 is a post which should be made an object of desire 
 in point of profit as well as honour to the first men 
 at the bar ; and if by stinting the remuneration 
 held out to those by whom it is occupied, that 
 standard of judicial excellence should be lowered 
 which it is so desirable to maintain, an injury may 
 be done to the administration of justice which it 
 may not be within the reach of future liberality to 
 correct. 
 
 Next to the effect which the rank and character 
 of judges has upon the law, the influence which 
 the conduct of barristers and solicitors have upon 
 it comes to be considered. Upon this subject 
 there is little to be said. Judges and practitioners 
 must necessarily, in some degree, act and re-act 
 
 * Fortescue de Laudibus Legum Anglix, cap. 51.
 
 CIVIL LAW OF ENGLAND. 477 
 
 upon one another. No check or stimulus is so 
 good upon a judge as that of a strong bar, and 
 the character of the bar is perhaps still more 
 materially affected by the character and capa- 
 city of the bench. This applies particularly to 
 the King's Attorney and Solicitor- General, who 
 when they possess the .weight and consequence 
 justly belonging to these places, are scarcely less 
 useful indirectly by acting as a kind of counter- 
 poise to the great judicial officers to whom they 
 usually succeed, as directly by the able discharge 
 of their own difficult and important duties. But 
 though the state of the bar has so great an effect 
 upon the administration of justice, it is more easy 
 to express a wish that it should be maintained 
 pure and enlightened, than to point out any means 
 which can be employed for that purpose. It is 
 said of Lord Hale that " there was another cus- 
 " torn among the Romans which he as much 
 " admired as he despised their rhetoric, which 
 " was that the Jurisconsults were the men of the 
 " highest quality, who were bred to be capable of 
 " the chief employment in the state, and became 
 " the great masters of their law. These gave 
 " their opinions of all cases that were put to them 
 " freely, judging it below them to take any pre- 
 " sent for it. Indeed they were the only true 
 " lawyers among them, whose resolutions were 
 " of that authority, that they made one class of 
 " those materials out of which Tribonian complied 
 " the Digests under Justinian. For the Orators 
 " or Causidici that pleaded causes knew little of
 
 478 ON THE PRESENT STATE OP THE 
 
 " the law, and only employed their mercenary 
 " tongues to work oil the affections of the people 
 " and senate, or the pretors. Our judge thought 
 " it might become the greatness of a prince, to 
 " encourage such a sort of men and of studies, in 
 " which none in the age he lived in was equal to 
 " the great Selden, who was truly in our English 
 " law what the old Roman Jurisconsults were in 
 " theirs."* Upon that vantage ground we have 
 never stood, though our lawyers rank higher I be- 
 lieve than any where else in Europe, and the state 
 of the law almost precludes a Selden or a Hale from 
 now rising up among us. " En Angleterre," it has 
 been said, " la plupart des Jurisconsultes ren- 
 " feme's dans leurs greffes, et ne connoissant que 
 " leurs archives, paraissent a peine s'appercevoir 
 " du bruit de nos sectes : la loi n'est pour eux 
 " qu'une profession."^ Instead of a profession it 
 is more likely to decline into a trade, from which 
 degradation it can be rescued by nothing but a 
 renovation of the system. The more the decision 
 of causes is governed by mere authority, and the 
 more the body of the law degenerates into con- 
 fusion, the more mechanical does the occupation 
 of a barrister become, and the business will at last 
 be thrown into the hands of persons who have 
 lower objects, lower attainments, and act upon 
 lower principles, than those to whom it was an- 
 tiently entrusted. If this affected merely practi- 
 
 * Burnct's life of Sir M. Hale, p. 125. 
 t Annales de Legislation, No. 1. p. 64.
 
 CIVIL LAW OF ENGLAND. 479 
 
 tioners of the law it would be of little conse- 
 quence. But it affects the suitors even more than 
 them. The character which barristers, solicitors 
 and attornies maintain, is the surest guarantee the 
 client can receive, that in the conduct of causes 
 no unnecessary step or dishonourable advantage 
 will be taken, but that both parties will contribute 
 to put them into that train which seems best cal- 
 culated for bringing their real merits fully and 
 fairly forward for the opinion of the judges. Ex- 
 cept by the influence which judges of ability and 
 integrity must always shed around them, and by 
 the amelioration of the law, there seems no other 
 way in which the character of practitioners in 
 courts of justice can be certainly and perma- 
 nently improved, and encoxiraging their liberal 
 remuneration. The liberal remuneration of those 
 who practise any art or science is the best method 
 of establishing their integrity and excellence, and 
 it applies to the legal as well as to every other 
 profession. If the effect of competition should 
 ever be to pare down the fees of barristers and 
 solicitors to the smallest sum for which men of 
 considerable quickness and activity could be got 
 to labour, then their character will sustain an 
 imperceptible but essential alteration. They will 
 not continue to hold the same rank in society, nor 
 will their conduct shew them to be entitled to 
 the same degree of confidence. But while it 
 seems to be advantageous to the rank and sta- 
 tion of lawyers that the recompense should be 
 liberal which is given to them by their clients
 
 480 ON THE PRESENT STATE OF THE 
 
 for their services, care should at the same time 
 be 'taken that as few as possible of these ser- 
 vices should be required, and that when they 
 are, the performance of them should demand 
 real skill and judgment. If the state of prac- 
 tice obliges a client to have recourse perpetu- 
 ally to solicitors and barristers, to whom he pays 
 comparatively small fees, to do those acts which 
 almost every man of common sense is capable 
 of doing, and of which when done he neither 
 comprehends the reason nor the value, it will be 
 found by him in the end the most expensive of 
 all the ways of getting justice. A bad system 
 is alike prejudicial to the interest of clients and 
 lawyers; and the surest way of sustaining the 
 character of the latter, is by promoting the im- 
 provement of that administration of justice with 
 which they are conversant. This however leads 
 directly to the consideration of the laws them- 
 selves, the amelioration of which whether imme- 
 diately or in its remote consequences, is one of 
 the most effectual means by which the distribu- 
 tion of justice can be facilitated.
 
 CIVIL LAW OF ENGLAND. 481 
 
 SECTION III. 
 
 Of the Laws themselves. 
 
 IT is to the simplification and amelioration of 
 laws themselves that the improvement in the ad- 
 ministration of justice in every country must be 
 mainly owing. Every system of law from time 
 to time stands in need of amendment. No per- 
 son can recommend the laws of any country to 
 be tampered with rashly or unnecessarily, but 
 whenever a decided improvement can be effected 
 either by the repeal of a bad law, or the enact- 
 ment of a good one, the opportunity ought not to 
 be neglected. Bad laws ought not to be conti- 
 nued under pretence of their being too trifling or 
 unimportant to be altered. This leads to much 
 practical inconvenience, for an incident is sure to 
 happen at some time or other which exhibits the 
 law in all its deformity and absurdity. It was 
 formerly in the power of any spiritual or tempo- 
 ral peer of parliament to object to any trial which 
 should take place where he was a party, unless a 
 knight was returned upon the jury. This law 
 was evidently unnecessary, and it might have 
 been foreseen would on some occasion prove in- 
 convenient. A bishop was the last person who 
 availed himself of this unreasonable provision. He 
 claimed his privilege in 1750, and in 1751 this 
 
 i i
 
 482 ON THE PRESENT STATE OF THE 
 
 unconscientious act was repealed.* The 18 
 Charles 2. c. 4. and 30 Charles 2. stat. 1. c. 3. 
 which, in order to encourage the woollen trade, 
 imposed a penalty of 5 upon every clergyman 
 who should neglect to give a note to the church- 
 wardens or overseers of the poor certifying that 
 the provisions of the act had not been complied 
 with, was suffered to continue long after burying 
 in woollen had fallen into universal disuse. It was 
 permitted to occupy a place in the statute book 
 until the immense number of prosecutions which 
 were brought against the parochial clergy of the 
 metropolis, by a common informer, caused it to 
 be repealed by 54 Geo. 3. c. 108., and by one of 
 its provisions all the proceedings then depending 
 under the preceding statutes were declared nuga- 
 tory, thus rendering it in fact one of the worst of 
 all possible legislative measures, an ev post facto en- 
 actment. Trial by battle continued a recognised 
 mode of proceeding both in civil and criminal 
 actions, until in 1819 an appeal having been 
 brought against Thornton by the infant brother of 
 a young woman whom he was accused of having 
 murdered, the whole judges of the court of King's 
 Bench narrowly escaped the awkward necessity 
 of being compelled to sit from sunrise to sunset 
 to see this man prove his innocence against the 
 infant's champion. A- slip in the pleadings fortu- 
 nately relieved the judges from such a Gothic 
 mode of doing justice, and the recurrence of such 
 
 * 3 Blackstone's Com. 359. By 24 Geo. 2. c. 18.
 
 CIVIL LAW OF ENGLAND. 483 
 
 an emergency was prevented the same year by 
 the 59 Geo. 3. c. 46. which declares " that the 
 " trial by battle in any suit is a mode of trial unfit 
 " to be used, and it is expedient that the same 
 " should be wholly abolished," and has abolished 
 it accordingly. The laws which obliged criminal 
 judges to perform the solemn and impressive ce- 
 remony of pronouncing sentence upon all crimi- 
 nals capitally convicted, though it was morally 
 certain that the sentence would not be executed, 
 continued until 1 823 to be an indispensable part of 
 a judge's duty, though eloquence and reasoning 
 had long conjoined their efforts to evince its im- 
 policy. And even at this moment when a person 
 is found to have been born purus idiota, or by any 
 accident to be reduced, to that calamitous situa- 
 tion, the profits of his lands and custody of his 
 person may be given to whomsoever he pleases 
 by the king.* To avoid this, the jury almost in- 
 variably find him to be a lunatic and not an idiot, 
 in direct contradiction both to the evidence and 
 the fact. It is also true that where idiocy is found, 
 the prerogative is exercised in tenderness to the 
 subject, but it would be every way better to alter 
 the law than to evade its operation. It was pro- 
 posed to abolish it along with other vestiges of 
 feudalism upwards of 200 years ago in the 18th 
 year of James I., " which motion," says Coke, 
 " though it proceeded not to effect, yet we 
 " thought good to remember it, together with 
 
 * 1 Blackstone's Com. p. 303. 
 I I 2
 
 484 ON THE PRESENT STATE OF THE 
 
 " these considerations : hoping that so good a 
 " motion, tending to the honour and profit of the 
 " king and his crown, and the freedom and quiet 
 " of his subjects and their posterities, will some 
 " time or other by the grace of God by authority 
 " of parliament one way or other take effect and 
 " be established."* The wise and generous wish 
 here manifested by Lord Coke is applicable to 
 all antiquated and unreasonable laws without li- 
 mitation or exception. Whenever it happens 
 that from their own nature, lapse of time, or, 
 change of circumstances, laws are found upon 
 full and fair investigation to clog or pervert the 
 course of justice, they ought to be anxiously and 
 invariably repealed. This is one reason for alter- 
 ations of the law. The system of the law may also 
 become altogether so intricate, and the proceed- 
 ings so burdensome and dilatory, that it may re- 
 quire almost complete redintegration. The inqui- 
 ries and proceedings which take place in order to 
 dispense justice, ought never to be carried beyond 
 what human life and business will permit. Justi- 
 nian in decreeing that no cause should last longer 
 than three years, prefixes to the law the following 
 preamble, " Properandum nobis visumest, nelites 
 " fiant pene immortales, et vitae hominum modum 
 " excedant, cum criminales quidem causas jam 
 " nostra lex biennio conclusit, et pecuniariae causae 
 " frequentiores sunt, et saepe ipsae materiem cri- 
 " minibus creare noscantur, praesentem legem su- 
 
 * Coke's 4th Institute, p. 20 3.
 
 CIVIL LAW OF ENGLAND. 485 
 
 " per his per orbem terrarum nullis locorum vel 
 " temporum angustiis coarctantur."* Muratori, 
 of whose treatise on the defects of jurisprudence 
 every portion is well worthy of attention, after 
 mentioning the anxiety for reformation manifested 
 by some distinguished Jesuits, such as Cevallos, 
 Contzenius, Conringius and Decian, at last sums 
 up thus, " la conclusione di tutto questo si e, che 
 " la soverchia e sterminata lunghezza delle liti, 
 " per tante sottigliezze, giri, e rigiri, inventati 
 " dall' acutezza de' causidici, e divenuta un male 
 " familiare dell' Italia e di tant' altri paesi Cris- 
 " tiani, e male di sommo incommodo e danno, a 
 " chiunque per sua disavventura dee fare o soste- 
 " ner delle liti. In sormna, la giustizia del mondo, 
 " anche mirata solamente di questa parte, cioe 
 " dalla lunghezza delle liti, se non comparira un 
 " ingiustizia, almeno sara da dire, una gran gabella 
 " di chi e forzato di chiamarlo in ajuto/'f " Tel 
 " fut encore une fois," says D'Aguesseau, " le 
 " premier age ; 1'age d'or de la justice. Ainsi 
 " tous les gens de bien voudroient-ils pouvoir la 
 " rendre toujours; mais combien leurs voeux re- 
 " doublent-ils, lorsque ils voient la justice deja 
 " languissante depuis long temps sous le poids de 
 " la forme, expirer presque sous le fardeau encore 
 " plus accablant de ce qu'il en coute malgr6 elle 
 " pour 1'obtenir ! Qui ne sait qu'a present plus 
 " que jamais, diff6rer la justice, c'est souvent la 
 
 * Cod. lib. 3. tit. 1. c. 13. 
 
 f Muratori, Diff. della Giuris. p. Ill & 113.
 
 486 ON THE 'PRESENT STATE OF THE 
 
 " refuser ! Le bon droit succombe, et il ne pile 
 " sous le joug de l'iniquite\ que parce qu'il n'a 
 " pas recu une prompte decision. Triste mais 
 " digne sujet de tremblement pour tous les juges ! 
 " Un dgr6 d'attention de plus, un dernier effort 
 " de rflexion,auroit peut-tre preVenu ce malheur. 
 " Le plaideur attendoit le moment de sa de"li- 
 " vrance ; mais cet heureux moment 6chappe a 
 " ses mains deja pretes a le saisir, il ne le voit 
 " plus que de loin au bout d'une longue et p6nible 
 " carriere, ou ses forces 6puises ne lui permet- 
 <f tront peut-etre jamais d'arriver."* Montesquieu 
 begins his chapter on the composition of laws 
 with the following short and nervous general ob- 
 servations. " Les formalit^s de la justice sont 
 " n^cessaires a la liberte\ Mais le nombre en 
 " pourroit ^tre si grand, qu'il choqueroit le but 
 " des loix mmes : on donneroit a Tune des par- 
 " ties les biens de 1'autre sans examen, ou les 
 " ruineroit toutes les deux a force d'examiner."t 
 I have placed these different passages together, 
 written in distant ages and countries, because the 
 remarkable coincidence of thought which prevails 
 between them could have sprung from no other 
 source than the truth of the melancholy fact 
 upon which they are founded. Whenever the 
 confusion of the law and tediousness of law- suits 
 become excessive it is for the good of the commu- 
 nity that they should be corrected, and that cor- 
 
 * CEuvres de D'Aguesseau, torn. i. I4mc Mercuriale. 
 t Esprit des Loix, liv. 29. ch. 1.
 
 CIVIL LAW OF ENGLAND. 487 
 
 rection is almost invariably postponed too long, 
 instead of being undertaken too early. 
 
 The intricacy of the law may arise from three 
 separate but generally concurring causes, the 
 number and confusion of legislative enactments, 
 the multitude of doctrines recorded in reported 
 cases, and from the accumulating niceties of legal 
 procedure. Of the pains that ought to be taken 
 to correct the first, there can be no question. 
 Swarms of laws are among the greatest plagues 
 that can be sent among any people. The extent 
 to which their multiplication has been carried in 
 England is unparalleled in any other country. 
 The proposed general law on forgery would re- 
 peal upwards of 350* separate enactments, and 
 each of the proposed acts of consolidation for the 
 Customs and Excise would probably repeal more 
 than twice the number. When they have been 
 permitted to run to so alarming an excess, it was 
 surely high time to begin to reduce them, and it 
 is to be hoped the reduction will go on until every 
 corner of the statute book has been subjected to 
 this species of purification. 
 
 The perplexity arising from the multitude of 
 doctrines contained in reported cases, is perhaps 
 even worse than that arising from the number of 
 acts of parliament themselves., Whenever a vast 
 quantity of judgments are heaped together, all 
 of them possessing a certain degree of authority, 
 
 * House of Commons' Report on the Criminal Law of Eng- 
 land, 1824. p. 187-
 
 488 ON THE PRESENT STATE OF THE 
 
 there must be incongruity and contradiction. 
 The reasoning of lawyers is rarely altogether er- 
 roneous, and as rarely remarkable for logical pre- 
 cision. It neither consists of a deduction from 
 the acknowledged principles of our nature, nor of 
 an induction necessarily resulting from a combina- 
 tion of indisputable facts. Both judges and coun- 
 sel are frequently obliged to avail themselves of 
 statutory enactments, analogy, precedents, conve- 
 nience, and natural justice in the course of the 
 same argument or judgment: and the superstruc- 
 ture must unavoidably partake of the defects and 
 inequality of the foundation. There is no period 
 of the law therefore in any country, in which the 
 deductions of lawyers are free from ambiguity, 
 and in process of time the dicta and decisions 
 which are amassed become so numerous, that 
 they can neither be comprehended nor recon- 
 ciled. The Speculum Aureum of Cevallos consists 
 of 4 folio volumes of discrepancies among laws 
 and lawyers,* and there is scarcely any antient 
 code existing where an industrious man might 
 not reap a similar harvest. Watkins in his trea- 
 tise on Copyholds says, " He has been brief, and 
 " where the subject permitted him he has endea- 
 " voured to extract consistency. This he found 
 " however was not always even to be hoped for. 
 "He found reporter against reporter, and case 
 " against case. He found consequences continue 
 " when their causes ceased. He found conclu- 
 
 * Muratori, Diffctti dclla Giuris. p. 21.
 
 CIVIL LAW OF ENGLAND. 489 
 
 " sions which followed from premises which 
 " once existed, applied to instances in which 
 " those premises could not exist. He found ar- 
 " bitrary assertion adopted by servility, cherished 
 " by prejudice, and at length matured into doc- 
 " trines whose law could not be questioned, but 
 " whose absurdity was too apparent to be denied. 
 4< It must not therefore be wondered at, if when 
 " so situated he has in some instances left the law 
 " in all its glorious uncertainty : and to such un- 
 " certainty must it always be subject, while we 
 " consider common sense as subservient to pre- 
 " cedent, and suffer the blunders of one age to be 
 " the criteria of right in another."* Even when 
 authorities are not inconsistent with one another 
 they may be remarkably inconsistent with some 
 acknowledged general principle, or the rules of 
 natural justice. Here then a question arises how 
 far succeeding judges are to be bound by what 
 they conceive to be the erroneous determinations 
 of their predecessors, and what are the just limits 
 of that deference to them they are bound to 
 yield. In words all judges admit the force 
 of authority, while at that very moment the 
 direct effect of their own judgment may be to 
 overturn it. The whole train of our reports shews 
 that in the law of England this point is as doubt- 
 ful as it is every where else. Lord Bacon has 
 said in his Maxims of the Law, " there be two 
 " contrary faults and extremities in the debating 
 
 * Watkins on Copyholds, Preface to v. ii. p. 6.
 
 490 ON THE PRESENT STATE OF THE 
 
 " and sifting out the law, which may be best noted 
 " in two several manner of arguments: some argue 
 " upon general grounds and come not near to the 
 " point in question; others without laying any 
 " foundation of a ground or difference or reason, 
 " do loosely put cases, which though they go near 
 " the point, yet being so scattered prove not, but 
 " rather serve to make the law more doubtful 
 " than to make it more plain." And he afterwards 
 declares that he " did intend expressly to weigh 
 " down authorities by evidence of reason, and 
 " therein rather to correct the law, than either to 
 " soothe a received error, or by unprofitable sub- 
 " tlety, which corrupteth the law, to reconcile con- 
 " trarieties."* And in his pleading on the statute 
 of uses, he mentions that previous to his time the 
 usage was " to expound the statutes by grounds 
 " and diversities ; as you shall find the readings 
 " still to run upon cases of like law and contrary 
 " law ; whereof the one includes the learning of 
 " a ground, the other the learning of a diversity; 
 " and not to stir concise and subtle doubts, or to 
 " continue a multitude of tedious and intricate 
 " cases, whereof all save one are buried, and the 
 " greater part of that one is nothing to the matter in 
 " hand."f The opinion expressed by W. D. Evans 
 is exactly to the same effect. He observes that 
 " The importance of the preceding observation, as 
 " to the necessity of adhering to previous authori- 
 " ties in matters respecting real property, is 
 
 * Bacon's Works, 4to Ed. v. ii. p. 329- t Ib. v. ii. p. 417-
 
 CIVIL LAW OF ENGLAND. 491 
 
 " very manifest; but I have often taken the op- 
 " portunity of expressing my wish, that the im- 
 " plicit acquiescence in authority had been con- 
 " fined to such cases as these, and to questions of 
 " mere technical reasoning, in which the decision 
 " of a question one way or the other is indifferent 
 " in its general consequences, and that the 
 " Courts would feel themselves more at liberty 
 " than they do in departing from mere authority 
 "in questions of evidence, of practice, of per- 
 " sonal contract, and obligation ; or where ad- 
 " herence to authority is confessedly repugnant 
 " to the real purpose of justice, and no material 
 " inconvenience would result from the judicial 
 " correction of it ; admitting at all times the cau- 
 " tion with which this principle ought to be 
 " adopted the presumption in favour of the sub- 
 " sisting doctrine the inconveniences even in 
 " these cases which may result from the altera- 
 " tion, and the manifest and evident utility 
 " which alone ought to be deemed sufficient to 
 " authorise the deviation."* And Luders in his 
 Law Tracts has bluntly affirmed that " no length 
 " of time or legal period of prescription can es- 
 " tablish nonsense or turn it into sense. If the 
 " first case was faulty the addition of a second 
 " will not mend it, nor another and another.''^ 
 These arguments go far to show, that the obe- 
 dience which judges are bound to pay to autho- 
 
 * Evans's Statutes, v. i. p. 386 and v. i. or ii. p. 96. 
 t Luders' Law Tracts, p. 129.
 
 492 ON^THE PRESENT STATE OF THE 
 
 rity ought not to be unlimited, and as it has in 
 fact never been paid, the point of resistance had 
 better be fixed and open rather than remain arbi- 
 trary and clandestine. There is no place where 
 dissimulation is more unsuitable than in the ad- 
 ministration of justice, and nowhere does it give 
 rise to greater incongruities and inconsistencies. 
 But even though decisions were more uniform 
 and reconcileable than they will ever be found, 
 there is the same objection to the excessive mul- 
 tiplication of them that there is to the multipli- 
 cation of legal enactments on the same subject. 
 It is always an inconvenience to have a number 
 of rules scattered over a large surface. The 
 mind can neither recollect them in detail, nor is 
 it possible to find any clear and controuling prin- 
 ciples which connect them. Yet this is the wil- 
 derness in which a mere case-lawyer delights to 
 wander. He can trace them upwards and down- 
 wards, quoting them by their names, describing 
 them by their properties, and pointing out all 
 their affinities, diversities, and coincidences. But 
 when a case is fully examined this parade of case- 
 law is most frequently found to be mere dead 
 weight upon the merits of the question. It is the 
 application not the possession of learning which 
 is on all occasions the proof of a really vigorous 
 and comprehensive understanding, and if cases 
 are well applied, a very few of them will usually 
 be sufficient. There is no necessity whatever for 
 one half of that obscure learning in which a large 
 part of the law of England is involved. The turn
 
 CIVIL LAW OF ENGLAND. 493 
 
 which the peculiarities of each case should give to 
 general rules must no doubt be attended to wher- 
 ever justice is dispensed properly, but pains must 
 also be taken from time to time to widen and 
 deepen these general rules themselves which the 
 distinctions springing up in decided cases have a 
 constant tendency to disfigure and obliterate. 
 
 If the number and nicety of the distinctions 
 which come to be sanctioned by courts of jus- 
 tice are unfavourable to the law, they are still 
 more prejudicial to the system of judicature. 
 A certain number of rules of practice are indis- 
 pensably necessary. Regularity and certainty 
 could not exist without them. But crowds of 
 practical rules, and a punctilious enforcement of 
 them, is one of the greatest evils with which any 
 system of law can be afflicted. The degree 
 to which this is carried in the law of England 
 is surely unnecessary. Nearly one fourth of 
 the cases which are reported are strictly speak- 
 ing of that description. In a speech delivered 
 by M. Portalis on the promulgation of one 
 of the portions of the French code, he has ob- 
 served, " II est done n6cessairement une foule 
 " de circonstances dans lesquelles un juge se 
 " trouve sans loi. II faut done laisser au juge de 
 " supplier k la loi par les lumieres naturelles 
 " de la droiture et du bon sens. Rien ne serait 
 " plus pue"ril que de prendre des precautions suf- 
 " fisantes pour qu'un juge n'eut jamais qu'un 
 " texte precis & appliquer. Pour pre"venir les 
 "jugemens arbitraires, on exposerait la socie"t6
 
 494 ON THE PRESENT STATE OF THE 
 
 " a mille jugemens iniques, et ce qui est pis, on 
 " 1'exposerait a ne pouvoir plus se faire rendre 
 " justice, et avec la folle ide de decider tous les 
 " cas, on ferait de la legislation, une ddale im- 
 " mense, dans lequel la me"moire et la raison se 
 " perdraient e"galement. Quand la loi se tait, la 
 " raison naturelle parle encore ; si la preVoyance 
 " des le"gislateurs est limite, la nature est infinie : 
 " elle ' s'applique a tout ce qui peut int^resser 
 " les hommes : pourquoi voudrait-on reconnoitre 
 " les ressources qu'elle nous offre ? Nous rai- 
 " sonnons comme si les legislateurs 6taient des 
 " dieux, et comme si les juges n'6taient pas 
 " m6me des hommes."* This is strong reasoning 
 with respect to any kind of authority whatever, 
 but with respect to the accumulation of cases on 
 points of practice it is irresistible. Up to a cer- 
 tain point the settlement of practice is extremely 
 useful, but beyond that the tendency of this sort 
 of petty legislation is directly opposite. The 
 judgment of man can neither lay down rules for 
 all cases/ nor the memory retain them, and so 
 much difficulty is created by the rules of practice 
 with which the law of England is now overbur- 
 dened, that it may be fairly questioned whether it 
 would not be better that the judges were entirely 
 left to their own discretion without any rules of 
 practice at all. Lawyers besides, from the mere 
 force of custom and the influence of habit, come 
 to regard legal learning, refinement, and distinc- 
 
 * Code Napoleon et Motifs, torn. ii. p. l6.
 
 CIVIL LAW OF ENGLAND. 495 
 
 tions, not as means to an end, but as an end 
 themselves, though they tend as little to the 
 real advancement of the administration of jus- 
 tice, as the logical subtleties of Duns Scotus and 
 Thomas Aquinas did to the increase of human 
 knowledge. " Ora per quanto," says Muratori, 
 " dieno nelle trombe per far risonare le glorie 
 " della magnifica lor professione, se con occhio 
 " d' indifferenza ci metteremo ad esaminar la sci- 
 " enza legale non meno in se stessa che nella 
 " pratica, noi troveremo non esser ella dissomi- 
 " gliante da tante altre umane cose, le quali mirate 
 " dall' un canto compariscono con aria di belta, 
 " e dall' altro di brutezza. Considerate le leggi 
 " di Giustiniano, per la maggior parte conten- 
 " gono belezza col contenere Ragione e Giustizia 
 " in se stesse, e un' ludevolissimo fine, perche 
 " tendente a dare il suo a ciascuno. Ma osservate 
 " un poco in pratica queste leggi : che confusioni, 
 " che battaglie, che disordini non si mirano ne' 
 " tribunal! ! SI bei regolamenti erano fatti per 
 " impedir le liti, e queste son cresciute ; doveano 
 " almeno abbreviarle, e queste non han piu fine : 
 " E tutto cio per aver la sottigliezza, la malizia, e 
 " 1' intemperanza degl' ingegni o amanti della no- 
 " vita, o ansanti di vittorie nell' dibattimento 
 " delle cause, e desiderosi di favorir taluno nel 
 " decidere, svegliate infinite controversie, pian- 
 " tate dottrine e conclusioni apposte : cosa non 
 " difficile, trattandosi per la piu di materie con- 
 " ghietturali delle quali manca la certa verita. 
 " Non si avvide di questo fiero garbuglio, o non
 
 496 ON THE PRESENT STATE OF THE 
 
 " se ne mette pensiero alcuno, chi per sua buona 
 " fortuna quietamente possiede il suo senza liti ; 
 " ma chiunque e sottoposto a si fatto flagello, 
 " ne sente bene, tuttoche ignorante, 1'asprezza. 
 " Conoscenti altresl del torbido e burascoso di 
 " queste acque i nostri Dottori, non se ne affligono 
 " punto, anzi li vedete compiacersi di questo 
 " medesimo ondeggiamento e tumulto, perch e 
 " al rovescio degli altri che ne piangono, perche 
 " o perdono tutto, o comperano caro quel che 
 ",loro resta, 6 che acquistano; gli avvocati, pro- 
 " curator!, e giudici per questa via arrichi- 
 " scono, e salgono anche a i prinii onori."* 
 The love of abstruseness and intricacy here al- 
 luded to is no where more remarkably displayed 
 than in the Institutes of Sir Edward Coke. More 
 propositions are affirmed or denied in them than 
 perhaps in any other book which ever saw the 
 light. His reasoning, like that of many ancient 
 judges, is more hard of comprehension from its 
 difficulty than its closeness ; and e.ven when the 
 reader has arrived at the conclusion, he does not 
 always know how he has reached it. The same 
 defect is observable also among most of the old 
 judges and reporters, and is found' prevailing 
 among a few lawyers even in the present day. 
 With a degree of perverseness not altogether sin- 
 gular, they seem unwilling that the world should 
 become either wiser or better, and to regard every 
 proposed improvement as a reflection cast upon 
 
 * Muratori, Diffetti della Giurisprudenza, p. 2.
 
 CIVIL LAW OF ENGLAND. 497 
 
 the understanding and acquirements of them and 
 their predecessors. They look with the same sort 
 of jealousy upon every sort of innovation, which 
 Mirza Ahmak, the physician of the King of Persia, 
 is supposed in the adventures of Hajji Baba to 
 entertain against the Frank who was about to 
 introduce the European practice, " What do we 
 " care about his new discoveries ? As our fathers 
 " did, so are we contented to do. The prescrip- 
 " tion that cured our ancestors shall cure us ; and 
 " what Locman and Abou Avicennk ordained, we 
 " may be satisfied to ordain after them." It has 
 happened accordingly that strenuous resistance 
 has always been made to the improvement of the 
 law in this country; and that it has proceeded 
 more from persons holding offices in the law than 
 from any other individuals. 
 
 However extraordinary it may appear, a re- 
 ference to our history will shew that an indif- 
 ference to the state of the law has increased 
 with the progress of knowledge and our im- 
 provement in every other branch of domestic 
 policy. At an early period, when the consti- 
 tution of the kingdom was beginning to assume 
 the form it has since preserved, the state of the 
 laws seriously occupied the attention of the king 
 and the legislature. So early as the statute of 
 Marlebridge, we find the preamble of it stand- 
 ing thus : " In the year of grace, 1267, the 52d 
 " year of the reign of King Henry, son of King 
 " John, in the utas of St. Martin, the said king 
 " our lord providing for the better estate of the 
 
 K K
 
 498 ON THE PRESENT STATE OF THE 
 
 " realm of England, and for the more speedy mi- 
 " nistration of justice as belongeth to the office of 
 " a king, and the more discreet men of the king- 
 " dom being called together as well of the higher 
 " as of the lower estate, by whom it was enacted, 
 " provided, agreed, and ordained, that the realm 
 " of England, of late disquieted with many trou- 
 " bles and dissensions, requireth the reformation 
 " of statutes and laws, whereby the peace and 
 " tranquillity of the people may be preserved, and 
 " wherein convenient remedy may by the said 
 " king and his ought to be applied ; hath made 
 " these acts and statutes underwritten."* The 
 preamble to that collection of statutes which 
 commonly receive the name of Westminster are 
 couched exactly in the same strain : " Whereas 
 " of late our Lord the King, in the quinzain of St. 
 " John Baptist, the sixth year of his reign, calling 
 " together the prelates, earls, barons, and his 
 " council at Gloucester, because that divers of his 
 " realm were disherited, by reason that in many 
 " cases where remedy should have been had, 
 " there was none provided by him nor his prede- 
 " cessors, ordained certain statutes right neces- 
 " sary and profitable for his realm, whereby his 
 " people of England and Ireland, being subject 
 " unto his power, have obtained more speedy 
 " justice in their oppressions than they had be- 
 " fore ; and certain cases wherein the law failed 
 " did remain undetermined, and some things re- 
 
 52 Henry 3.
 
 CIVIL LAW OF ENGLAND. 499' 
 
 " mained to be enacted that were for the reforma- 
 " tion of the oppressing of the people : our Lord 
 " the King in his parliament, after the feast of 
 " Easter in- the 13th year of his reign, at West-- 
 " minster, caused many oppressions of the people 
 " and defaults of the laws, for the accomplish- 
 " ment of the said statutes of Gloucester, to be 
 " rehearsed, and thereupon did provide certain 
 " acts as will appear here following."* Many 
 other improvements were made in this reign and 
 that of the succeeding Edwards. The 14 Ed- 
 ward 3. stat. 1. c. 5. makes that admirable pro- 
 vision which the lethargy of subsequent days has 
 suffered to degenerate into a dead letter, by which 
 a tribunal is to be established at the beginning of 
 every new parliament, consisting of one prelate, 
 two earls, and two barons, to hear complaints of 
 grievances and delays of justice in the king's 
 courts, and with the advice of the chancellor, 
 treasurer, and justices of both benches to redress 
 them : " Also because divers mischiefs have hap- 
 " pened for that in divers courts, as well in the 
 " Chancery as in the King's Bench, the Common 
 " Bench, and in the Exchequer, before justices 
 " assigned, and other justices deputed to hear 
 " and determine, the judgments have been de- 
 " layed, sometime by difficulty, and sometime by 
 " divers opinions of the judges, and sometime for 
 " some other cause ; it is assented, established, 
 
 * Preamble to 13 Edward 1. commonly called the Statute of 
 Westminster the 2d. 
 
 K K 2
 
 500 ON THE PRESENT STATE OF THE 
 
 " and accorded, that from henceforth at every 
 " parliament shall be chosen a prelate, two earls, 
 " and two barons, which shall have power from 
 " the King to hear by petition delivered to them, 
 " the complaints of all those that will complain 
 " therein of such delays or grievances done to 
 " them ; and are authorised, with the assistance 
 " of other persons, to hear and determine them." 
 In the reigns of Henry VIII. Elizabeth, and James I. 
 great improvements were made in the law ; but it 
 seems superfluous to enter into any further speci- 
 fication of the attempts that have been made for 
 that purpose, as the most cursory examination of 
 the statute-book will afford indubitable evidence of 
 the state of the law having formed in early times 
 a subject of serious concern to the sovereign and 
 the government, and some of the most illustrious 
 names in the law have been most zealous in their 
 support. We see from various passages in the 
 works of Lord Bacon and Lord Coke how anxious 
 they were for its amelioration. Lord Bacon com- 
 posed several of his treatises for this express 
 purpose; and Lord Coke, whose fame rested 
 chiefly in his own day, as it has done ever since, 
 on the minute technical knowledge and recondite 
 learning he possessed relative to our Common 
 Law, and who on that account might have been 
 predisposed to resist its alteration, shewed him- 
 self as zealous for its advancement as his more 
 distinguished contemporary. The name of Lord 
 Hale has been too often mentioned already to 
 make any further mention of his services in this
 
 CIVIL LAW OF ENGLAND. 501 
 
 cause requisite. Of Lord Keeper North it is 
 also said, " that all the while his lordship was 
 " chief justice of Common Pleas, and had leisure, 
 " he bent his thoughts very much to regulate 
 " what was amiss in the law. For it is impos- 
 " sible but in process of time, as well from the 
 " nature of things changing, or corruption of 
 " agents, abuses will spring up ; for which reason 
 " the law must be kept as a garden, with frequent 
 " digging, weeding, turning, &c. ; for that which 
 " was in one age convenient, and perhaps neces- 
 " sary, in another becomes an intolerable nui- 
 " sance." It is added, " he digested his thoughts 
 " into the form of a tract, and thereon designed 
 " to bring acts of parliament as he had encou- 
 " ragement or opportunity." Still, however, it 
 is generally true, that the great body of lawyers, 
 and of men holding offices in the law, have been 
 hostile to innovation, and phantoms of every kind 
 have been conjured up by them to justify their ap- 
 prehensions. Mankind have even been threatened 
 with a calculation of the mischiefs which would 
 follow if justice were rendered too cheap and ex- 
 peditious. No man who has ever seen or heard of 
 the administration of law in any age or quarter of 
 the world, can conceive such a calculation to have 
 been made but in the bitterest derision. Those 
 by whom the courts of justice are frequented will 
 soon perceive, that with her name for ever on their 
 lips, and while her honour seems to be before their 
 eyes, her plainest precepts may be strangely slight- 
 ed by her own ministers, when serving at her own
 
 502 ON THE PRESENT STATE OF THE 
 
 altars. If justice is administered well, it never 
 can be done either too cheaply or too quickly. 
 However desirable it is that a litigious spirit 
 should be checked, the paucity of law-suits may 
 become a symptom even more alarming than their 
 superabundance. It shews that people are un- 
 willing to resort to courts of justice under any 
 circumstances, and are either unable or unwilling 
 to vindicate their rights in that place where they 
 ought naturally to be settled. The hopes and 
 fears which have been expressed by lawyers with 
 respect to changes in the law have in general 
 been singularly disappointed. Lord Nottingham 
 is reported to have observed of the 29 Charles 2. 
 c. 3. " that every line of it was worth a subsidy."* 
 So much has it turned out otherwise, that instead 
 of being as it is styled, an act " for the prevention of 
 " frauds and perjuries," it is generally thought to 
 have proved an act for their encouragement. On 
 the other hand Lord Keeper North is said to have 
 " thought that the taking away of tenures would 
 " prove a deep blow to the liberties of the people 
 " of England."^ Never was there a more unfor- 
 tunate prediction. Look only at Lord Coke's 
 Institutes, or any of the books of law reports an- 
 tecedent to its repeal, and it will be found that 
 this act has done more to relieve the subject, su- 
 persede recondite learning, and simplify the law, 
 than any single enactment that was ever sanctioned 
 by legislative authority in England. 
 
 * North's Life of Lord Keeper North, v. i. p. 209. 8vo. ed. 
 t W. v.ii. p. 161. 8vo. ed.
 
 CIVIL LAW OF ENGLAND. 503 
 
 The resistance made to the abrogation or mo- 
 dification of antiquated laws and forms sometimes 
 proceeds from the prescience which arises from 
 profound reflection, but more frequently from that 
 dread of alteration usually displayed by men of 
 mere mechanical attainments, when it is super- 
 induced upon a naturally timid and contracted 
 understanding. It might have been thought, that 
 if ever an act could be proposed, the obvious 
 utility and security of which would have disarmed 
 all opposition, it would have been the 4 Geo. 2. 
 c. 24. which enacted that all proceedings in courts 
 of justice in England should be in the English lan- 
 guage. It was not so however. The bill was re- 
 sisted in almost all its stages, both in the House 
 of Lords and Commons, and the whole proceed- 
 ings are so curious and instructive that it may be 
 worth while to lay them before the reader. " Fe- 
 " bruary 11, 1731. Two petitions were presented 
 " to the Commons from the Quarter-Sessions held 
 " for the East and North Ridings of Yorkshire, 
 " complaining, That the obliging Grand Jurymen 
 " at the Sessions of the Peace to make their pre- 
 ",sentations in a language which few of them un- 
 " derstand ; and the suffering in any of the pro- 
 " ceedings of any of the courts of justice or in any 
 " of the transactions of the law, whereby theper- 
 " son or property of the subject may be affected, 
 " the use of a language not intelligible, and of a 
 " character not legible but by the learned in the 
 " law, were great occasions of the delay of jus- 
 " tice, and gave room to most dangerous frauds :
 
 504 ON THE PRESENT STATE OF THE 
 
 " that special pleadings by their intricacy and di- 
 " latoriness rendered the prosecution of the rights 
 " of the subject difficult and expensive : that the 
 " recovery of small debts as the law then stood 
 "was impracticable, and the number of attornies 
 " excessive: and praying the House to take these 
 " grievances into consideration, and to give such 
 " remedy as to the House shall seem meet."* A 
 bill was accordingly presented to the House by 
 Sir George Savile, " That all proceedings in 
 " courts of justice shall be in the English lan- 
 " guage." The report then proceeds in the fol- 
 lowing words : " While this bill was depending 
 ". in the House great opposition was made to it, 
 " and the principal arguments insisted on were, 
 " That if the language and writing of the law 
 " should be altered and made according to the 
 "modern way of speaking and writing, no one 
 " would even be at the pains to study that ancient 
 " language and writing, which most of our old va- 
 " luable records are wrote in, so that the use of 
 " them would in a few years be entirely lost : 
 " That the method of distributing justice was now 
 " established according to a most concise and 
 " regular form, which must be entirely altered if 
 " the language and methods of pleading should 
 " be changed : That this would necessarily pro- 
 " duce such a confusion, that it would cost many 
 " years -painful and troublesome application be- 
 " fore the new forms could be settled in a certain 
 
 -.rtf'jfo . '} S'J; Y 41 ;>:/.': > ' . . ;"iv. ... ' 
 
 i. * Hansard's Parliamentary History, v. viii. p. 414r.
 
 CIVIL LAW OF ENGLAND. 505 
 
 *' and regular course of proceedings ; so that the 
 *' making of those alterations would occasion 
 " greater delay of justice, give more room to dan- 
 " gerous frauds, render the prosecution of the 
 " rights of the subject more difficult and expen- 
 " sive, the recovery of small debts more imprac- 
 " ticable, and the number of attornies more ex- 
 " cessive than heretofore." To these objections 
 it was answered by the advocates of the bill, 
 " That though both the language and writing of 
 " the law should be altered, there would be no 
 " danger of losing the use of our ancient records; 
 " because as long as we have any such, there will 
 " always be some men who either out of curiosity 
 " or for the sake of gain will make it their busi- 
 " ness to understand both the language and cha- 
 " racter in which they are written, in the same 
 " manner as we find among us now, several gen- 
 " tlemen who make it their business to understand 
 " the language and character of manuscripts much 
 " ancienter than any of our records : That a very 
 " few of such law antiquarians will suffice, con- 
 " sidering the little occasion we have in any law 
 " proceedings to have recourse to any very an- 
 " cient records, and when they are made use of, 
 " they often do more harm than good : It being 
 " necessary for every nation to have private pro- 
 " perty determined and ascertained by a con- 
 " tinued possession for a moderate term of years. 
 " And as to the set forms of the law, it was al- 
 " leged that we had already too many of them, 
 " and that they were of opinion, that nothing so
 
 506 ON THE PRESENT STATE OF THE 
 
 " much perplexed and retarded the proceedings 
 " of our courts of justice as a too nice observance 
 " of the established forms : That such forms are 
 
 " generally brought for the sake of new fees to 
 " such a bulk by the lawyers of all countries, that 
 
 " every country has found it necessary from time 
 
 " to time to curtail and abridge them: That justice 
 
 " was generally the most speedily and the most 
 
 " impartially distributed in those places where 
 
 " the fewest forms were observed: That therefore 
 
 " they thought the destruction of our law forms 
 
 ." was a good argument for the bill instead of 
 
 " being against it, because it would take up a con- 
 
 " siderable time before the lawyers could again 
 
 " perplex the course of justice with a number of 
 
 " useless forms and ceremonies. The bill was af- 
 
 .-" terwards passed and ordered up to the lords."* 
 
 Next time it is mentioned after going up to 
 
 the .lords, " The lords in a committee on the 
 
 " English law bill went through the same after 
 
 " debate. Those who were against it alleged, 
 
 ." That great difficulties would arise in translating 
 
 " the law out of Latin into English, and instead 
 
 " of being an ease to the people, it might per- 
 
 " haps be the subject of great disputes, and mul- 
 
 " tiply law-suits in regard to the interpretation of 
 
 " English words." And that the opposition of a 
 lawyer might not be wanting, Lord Raymond 
 .said, " that if the bill passed, the law must like- 
 '* wise be translated into Welsh, since many in 
 
 * Hansard's Parliamentary History, v. viii. p. 858.
 
 CIVIL LAW OF ENGLAND. 507 
 
 f Wales understood not English." To which the 
 Duke .of Argyle triumphantly replied, " That the 
 " meaning of the law had been long understood by 
 " the interpreters thereof the judges, and would 
 " surely be so when translated. That our prayers 
 " were in our native tongue that they might be 
 " intelligible, and why should not the laws where- 
 ** in our lives and properties are concerned be 
 " so for the same reason ?" His grace added, 
 " That he was glad to see that the said lord, per- 
 " haps as wise and learned as any that ever sat 
 " in that house, had nothing more to offer against 
 " the bill than a joke. The next day the lords 
 " passed the said bill."* Nothing can be more 
 instructive than the whole progress of the discus- 
 sion which has been now detailed. Nearly three 
 hundred years had elapsed since the 36 Edward 3. 
 c. 15. had enacted that "all pleadings and judg- 
 " ments in the courts of Westminster should be 
 " for the future in English ;" and notwithstanding 
 the patience with which the nation had waited for 
 the completion of the good work which was then 
 begun, it was assailed with the whole host of ar- 
 guments which are invariably resorted to when 
 any material improvement of the law is projected. 
 It is in periods of public agitation, and to recon- 
 cile men's minds to a revolution or restoration in 
 the state, that the greatest innovations in the law 
 have usually been made, and they have almost in- 
 variably proved successful. The whole course of 
 
 * Hansard's Parliamentary History, v. viii. p. 860.
 
 508 ON THE PRESENT STATE OF THE 
 
 history, and that of our own country in particular, 
 may be vouched in confirmation of the fact. Be- 
 ginning with the confirmation of Magna Charta in 
 the reign of King John, and pausing successively 
 at the reigns of the first and third Edwards, the 
 usurpation of Cromwell, the restoration of Charles 
 II., the revolution of 1688, and the rebellion in 
 Scotland in 1745, it will be found that more 
 marked ameliorations in the letter and adminis- 
 tration of the law took place at those conjunctures 
 than in any other periods of our annals. At pre^ 
 sent the natural course of events is urging that 
 forward, which it has hitherto required the aid of 
 a political crisis to accomplish. Legislative enact- 
 ments and reports of adjudged cases are multiply- 
 ing so fast that the law must soon undergo some 
 signal alteration. With respect to the statutes in 
 particular, one can neither look at their number 
 and size without dismay, nor reflect upon the man- 
 ner in which they are framed, without apprehen- 
 sion. A fresh volume of them issues from the 
 press every year as large as the entire code of any 
 state in Europe. This alone proves that there 
 must be an error somewhere. No people on earth 
 can require to be so coerced by legislative enact- 
 ments. If one of these annual Digests should be 
 closely examined, a scene will be found to present 
 itself with which even members of parliament 
 themselves must be astonished. There are so 
 many acts for enlarging acts for continuing 
 acts to enable acts to indemnify acts for regu- 
 lating acts for repealing acts for making per-
 
 CIVIL LAW OF ENGLAND. 509 
 
 petual acts to remove duties acts to rectify 
 mistakes acts to explain and amend acts; that 
 one half of them only explains the other half, and 
 the explanatory half is not unfrequently itself in- 
 explicable. Whether this arises from the haste 
 or incompetency with which laws are drawn up, 
 or the sort of experimental legislation which is so 
 rapidly gaining ground, it would well become the 
 government seriously to consider whether any 
 stop could be put to the growth of this alarming 
 evil. The Athenian punishment for those who 
 proposed unsuitable laws was this, "No/*o? y^, w 
 
 tl ICC.V Tf jlA>) 7TlTJflOV 6>) VOfAOV, Tf yPKIptZS Xar' duTX - 
 
 ** Tov ypa^/avToi vopov -n "YnQurfAot, pirot, IVUIVTOV /A IIVOLI 
 " uireufluw/'* and it is fervently to be wished that 
 some such penalty could be suspended over those 
 by whose undigested attempts at legislation our 
 statute book is burthened and disgraced. There 
 is another of the institutions of that people which 
 we might also borrow with advantage, and that 
 is to have no more than one law upon one sub- 
 ject. " Taj 0<JY*o9Ta? x0' lxa<rroj< tvuzvrov hopQovv Iv 
 
 j T;? vctyiyponrToii vopog tv&VTios rtpw vopu 
 '* axupo? Iv roig XU^UOK, j EITTOU tun vopot TrAftouj li/of -nrfpt 
 tl txaiTTJjj Tr^a^fwf. Kxv T TOIOUTOJ/ luptcrxwo'ji' dvotysypK- 
 f( Qorotq Iv G&VHTW XT0i/at TrporQiv ruv ETTCOVU/AWV" TOUJ 
 te ft HpvTotvtig T^omv xxAnrtai/ 
 
 " TOV ^' ETTKTTaTtll/ TWI/ HpOlfpUV 
 
 * Petiti Leges Atticae, lib. ii. Tit. 1. Argumenta Orat. De- 
 mosth. contra Leptinem.
 
 510 ON THE PRESENT STATE OF THE 
 
 ruv 
 
 -ZEschines in his speech against Ctesiphon speaks 
 and reasons on the subject still more distinctly. 
 
 " 'Ei yap TOUTO l<rnv aArjflef, xa TOIOUTOV g3oj wapaSeSyxsv uptwv 
 " Iif rjv woAjTsav, wars axypoyj vopjyj Iv TOIJ xupiojjavaysypaip- 
 " 0a, xa 800 7rep< jw.<5 Trpa^scoj UTrsvavriooj aXX>jAo5, TJ av lr< 
 " rayr>jv e*TO TIJ Iivaj rrjv 7roATSav, Iv 19 raura 7rpOTTTToy(Tiv 6* 
 " vo].oi 7roev xa ju,>j TTOJSJV; aXX' oux l^s Taura OWTOOJ* ju,>]9' 
 " uj*ej wore lj TOcraoTJjv arajjiav TCOV vopcov 7rpo/>)Te' cure ij/x-g- 
 " Xi)Ta Trspi TCUV TOIOUTOJV T> vo/*o9cTj TO) T)]v Sr)aoxpTJv xara- 
 " ffT^cravT*, aAXa SiapprjSrjv TrgotTTSTaxraj roTf flsa-jaofisTaij x9' 
 *' lxa<TTOV Ivjaorov 8op0ouVlv TW Srjjtx-a) TOW? vopouj, axpj3a>j I^sra- 
 " eravraj xai <rx\j/ajttvouj Ii TIJ avaysygaTrraj VO/AOJ ivamoj 
 " ITS^OJ voficu, ^ axupoj Iv TOJJ xwpjojj, ^ e7TOU lor< voju-oi 7rXeouc 
 f< Ivoj avaygypapjU,gvo< Tregj lxa<rT)]j Trga^jcoj, xav T* TOJOUTOV 
 " lypicrxoKTiv avaysypa^oraj Iv <ravj(rv, lxT9eva< xeXsuej Trpotrfev 
 <c TWV STfoovvf^aav, TQV$ 8s Trpwravsjf TTOJSJV lxxXr)(7iav, iTrjypav^avraj 
 TOV S'gTno'Ta'njv TCOV wpoeSpcov 8^epOTOVav 8<8ova< 
 xa TOW? j*ev avapsv TOJV vo/*wv royj 8s xaraXiTrsiv, 
 av <f j vojtx-oj, xa fx-rj TrXsioyj Trsg* exacmjj 7rpa0ecoj."'f' 
 
 This passage proves that the importance of con- 
 solidation was as well understood then as it has 
 ever been since, and nothing would have amazed 
 them more than the egregious neglect shewn by 
 our legislature of so plain a duty. Even now the 
 imperfect consolidation which is attempted, leaves 
 nearly half the ambiguity which before existed, 
 and does not display that decided character which 
 consolidation ought to assume. Too much time 
 and pains can hardly be taken in collecting and 
 
 * Petiti Leges Atticae, p. 8. f ^schines adv. Ctesiphont.
 
 CIVIL LAW OF ENGLAND. 511 
 
 condensing the laws which it is meant to consoli- 
 date, but unless consolidation when completed is 
 attended with a repeal of the whole consolidated 
 laws, it will be found to aggravate the inconve- 
 nience it was meant to remedy. But consoli- 
 dation will not remedy another evil now creep- 
 ing in, which renders every act of parliament a 
 casuistical treatise on the subject to which it 
 relates. Instead of consisting of plain and gene- 
 ral legislative enactments for the government of 
 a great nation, most acts of parliament now point 
 out what is to be done in each particular situa- 
 tion with all the minuteness of a prescription for 
 a chemical or manufacturing process. The conse- 
 quence is, that so many specifications are required; 
 and so many are almost invariably forgotten, that 
 scarcely a single act or deed can be enjoined 
 or forbidden, which is not evaded in the teeth 
 of the most direct intentions of the legislature. 
 The joint influence of these causes has reduced 
 the law to a state in which it is almost impossi- 
 ble that it should long continue. " The capa- 
 " city of deciding legal controversies," says 
 Hallam, " was now only to be found in men 
 " who had devoted themselves to that peculiar 
 " study ; and a race of such men arose, whose 
 " eagerness and even enthusiasm in the profes- 
 " sion were stimulated by the self-complacency 
 " of intellectual dexterity in threading its intri- 
 " cate and thorny mazes. The Normans are 
 " noted in their own country for a shrewd and 
 " litigious temper, which may have given a cha-
 
 512 ON THE PRESENT STATE OF THE 
 
 " racter to our courts of justice in early times. 
 " Something too of that excessive subtlety, and 
 " that preference of technical to rational prin- 
 ciples, which runs through our system, may 
 " be imputed to the Scholastic philosophy, which 
 " was in vogue during the same period, and is 
 " marked by the same features. But we have 
 " just reason to boast of the leading causes of 
 " these defects, which have in no country I be- 
 " lieve been carried to such a length. Hence 
 " precedents for adjudged cases, becoming autho- 
 " rities for the future, have been constantly noted, 
 " and form indeed almost the sole ground of argu- 
 " ment in questions of mere law. But these au- 
 " thorities being frequently unreasonable and in- 
 " consistent, partly from the infirmity of all 
 " human reason, partly from the imperfect man- 
 " ner in which a number of unwarranted reporters 
 " have handed them down, later judges grew 
 " anxious to elude by impalpable distinctions 
 " what they did not venture to overturn. In 
 " some instances this evasive skill has been ap- 
 '* plied to acts of the legislature. Those who are 
 " moderately skilled in the history of our law will 
 " easily trace other circumstances that have co- 
 " operated in producing that technical and subtle 
 " system which regulates the course of real 
 " property. For as that formed almost the whole 
 " of our ancient jurisprudence, it is there that we 
 " must seek for its original character. But much 
 " of the same spirit pervades every part of the 
 " law. No tribunals of a civilized people ever
 
 CIVIL LAW OF ENGLAND. ,: 513 
 
 " borrowed so little even of illustration, from the 
 " writings of philosophers, or from the institu- 
 " tions of other countries. Hence law has been 
 " studied in general rather as an art than a 
 " science, with more solicitude to know its rules 
 " and distinctions, than to perceive their appli- 
 " cation to that for which all rules of law ought 
 " to have been established -the maintenance of 
 " public and private right. Nor is there any 
 " reading more jejune and unprofitable to a phi- 
 " losophical mind than that of our antient law 
 " books. Later times have introduced other in- 
 " conveniences, till the vast extent and multipli- 
 " city of our laws have become a practical evil of 
 " serious importance, and an evil, which between 
 " the timidity of the legislature on the one hand, 
 " and the selfish views of practitioners on the 
 " other, is likely to reach in no long period an 
 " intolerable excess. Deterred by an interested 
 " clamour against innovation from abrogating 
 " what is useless, simplifying what is complex, 
 " or determining what is doubtful, and always 
 " more inclined to stave off' an immediate diffi- 
 " culty by some patchwork scheme, of modifications' 
 " and suspensions, than to consult for posterity 
 " in the comprehensive spirit of legal philosophy, 
 " we accumulate statute upon statute and prece- 
 " dent upon precedent, till no industry can ac- 
 " quire r nor any intellect digest the mass of 
 " learning that grows upon the panting student ; 
 " and our jurisprudence seems not more likely to 
 " be amplified in the worst and least honourable 
 
 L L
 
 514 ON THE PRESENT STATE OF THE 
 
 " manner a tacit agreement of ignorance among 
 " its professors. Much indeed has already gone 
 " into desuetude within the last century, and is 
 " known only as an occult science by a small 
 " number of adepts. We are thus gradually 
 " approaching the crisis of a necessary reforma- 
 " tion, when our laws like those of Rome must 
 " be cast into the crucible. It would be a dis- 
 " grace to the nineteenth century if England could 
 " not find her Tribonian."* That some revision 
 is necessary and must at no distant period be 
 attempted, many concurring circumstances seem 
 to indicate. The spirit prevailing among our own 
 people, the improvements in jurisprudence which 
 are taking place among our neighbours, as well as 
 the chaotic state of the law itself, all point deci- 
 dedly towards an approaching change. " L'an- 
 " cienne croyance dans les traditions et les cou- 
 " tumes nationales est gn6ralement bran!6e. 
 " En un mot le vieux systeme 16gislatif se trouve 
 " partout plus ou moins profond^ment mine ; min6 
 " par le temps, mine par les 6venemens, mine" 
 " par le travail conttnu et irresistible des id6es et 
 " des besoins des nouvelles generations. Portons 
 " nos regards autour de nous. Que voit-on ? A 
 " Vienne et a Paris, a Londres et a Turin, a Pe- 
 " tersbourg et a Naples, en Suisse, en Allemagne, 
 " a Varsovie, en Amrique, Ton s'occupe de nou- 
 " velles loix, de nouveaux codes, de revision, 
 " d'organisation judiciaire, de procedure, d'ecoles 
 
 * Hallam's Middle Ages, vol. ii. p. 1^0 193, 1st ed.
 
 CIVIL LAW OF ENGLAND. 515 
 
 " de droit, de la creation de nouveaux chaires." 
 It has been observed in the same dissertation, 
 " II y a toujours quelque chose de vrai, dans les 
 " opinions de la grande masse des hommes occu- 
 " p6s des affaires r6els de la vie. S'ils d^sirent, 
 " ou s'ils repoussent quelque chose, c'est presque 
 " toujours par le sentiment d'un besoin, qui n'est 
 " pas moins vrai, quoiqu'ils n'aient pas bien appris 
 " a le bien definir. C'est leur siecle, leur 6tat 
 " politique et moral, qui parle a leur inscu par 
 " leur bouche."* The truth of these observations 
 no candid inquirer can deny. Within the last fifty 
 years there is scarcely a state in Europe in which 
 vigorous efforts have not been made for the im- 
 provement of its laws and judicial institutions, 
 Tuscany, Austria, Russia, Prussia, France, Bavaria, 
 Lombardy, Wirtemburg, and Holland have all been 
 actively employed. When the convulsions which 
 took place in 1820, 21, and 22, in Spain, Portu- 
 gal, and Naples broke out, the persons by whom 
 these revolutions were carried or supported, im- 
 mediately proposed the revision of the laws as 
 the most powerful engine they could use to 
 secure the esteem and affections of the people. 
 The principles upon which the codes in some of 
 these countries have been founded, it is neither 
 necessary to eulogise nor defend. Defective 
 or erroneous as they may be, there can be no 
 doubt that almost all of them were improvements 
 upon the systems which they superseded. Be 
 
 * Annales de Legislation, No. 1. p. 65, Geneva, 1820. 
 L L2
 
 516 ON THE PRESENT STATE OF THE 
 
 this however as it may, the attempt at ameli- 
 oration which it was found expedient to make, 
 proves the importance which is always attached 
 by the body of the people to the state of the laws 
 under which they live, and that unless something 
 had been extremely amiss in their condition in 
 each of these countries, the renovation of them 
 which was promised would not have been hailed 
 with such deep and universal satisfaction. 
 
 The people of this country are prompted to a 
 revision of the law as well by emulation as ex- 
 ample. When Lord Bacon said that knowledge is 
 power, he might have added that character is 
 power also. As ignorance disappears, and just 
 notions of the qualities of those objects in which 
 the real dignity of states consists, the influence of 
 character will become more and more predominant. 
 It is a tribute which force and splendour are com- 
 pelled to pay to real excellence. The communi- 
 cation between different parts of the civilized 
 world has now become too general and rapid, to 
 permit extravagant and unfounded praise or blame 
 of any system of law or its administration to be 
 received in the manner it was during the preceding 
 century. One of the most effectual means of dis- 
 pelling ignorance and prejudice is foreign travel. 
 Place a person of a strong mind, but with strong 
 national partialities, in a foreign country, and if 
 he enters into free communication and discussion 
 with intelligent individuals, he will find himself for 
 some time both humbled and astonished. In every 
 state through which he passes he will be surprised
 
 CIVIL LAW OF ENGLAND. 517 
 
 to find the public as fully satisfied of the supe- 
 riority of their manners, customs, habits, maxims, 
 and opinions, as he is of those he left at home ; 
 and the state of conflict and inquiry which this 
 occasions, and which cannot be conceived except 
 by those who have experienced it, is one of the 
 best of all schools for learning to reason justly and 
 comprehensively either on law or government. 
 Travelling is now no longer confined to a number 
 of rich and distinguished individuals, who went 
 abroad chiefly to improve their manners and cul- 
 tivate their taste. It is now applied to a much 
 higher purpose, that of giving and receiving know- 
 ledge for the general instruction and improvement 
 of mankind. Every country is now pouring forth 
 multitudes of intelligent men who find their way 
 into every quarter of the globe, who there meet with 
 men of kindred pursuits, and carry back with them 
 exact and extensive information respecting every 
 part of the policy and institutions of the states 
 which they have visited. The number of people 
 to whom this has happened in consequence of the 
 unconfined communication which has taken place 
 all over the world for the last ten years, has 
 greatly abated the arrogant pretensions and over- 
 weening conceit with which every man is for 
 awhile disposed to regard the laws and govern- 
 ment of his own country. The predominance of 
 reason is causing the dominion of prejudice to be- 
 come daily more and more restricted. We begin 
 to estimate the laws of other countries and our 
 own according to their real merits, and to per-
 
 518 ON THE PRESENT STATE OF THE 
 
 ceive that theirs are neither so bad nor our own 
 30 good as we had once believed them. They 
 are advancing while we remain stationary, and we 
 are stationary here when we are stationary in no 
 other instance. While in every other art and 
 science we are starting forward with a rapidity 
 unknown in any other place or period, and 
 which has for the time placed our country at 
 the head of the civilized world, in our system of 
 law we have done comparatively nothing. In 
 this state of backwardness regard to our own cha- 
 racter will not permit it to continue. It must un- 
 dergo a revision, and a revision both more exten- 
 sive and efficient than any to which it has yet been 
 subjected. 
 
 There is another motive for the improvement of 
 the law not less strong than either example or 
 emulation, and that is the utility which would at- 
 tend it. Nothing is stationary in us or around us, 
 and if any sublunary object were, it would be 
 nearly as much affected by the transmutation 
 of surrounding objects as its own. Laws, like 
 those of the Medes and Persians, which change 
 not, are only fit for a rude and unimproving 
 people. Such a system could neither endure 
 great improvement, nor be endured by it. The 
 present rapidly advancing state of Europe in po- 
 pulation, and knowledge, and the multiplying rela- 
 tions of society, demand an adaptation of the 
 laws to the exigencies which these circumstances 
 are creating. No better illustration of this can 
 be given than the feudal system. Whatever may
 
 CIVIL LAW OF ENGLAND. 519 
 
 be thought of it in the abstract either with re- 
 ference to law or policy, it was in many respects 
 well adapted to the times in which it sprung 
 up. It assorted well with the sentiments, habits, 
 and circumstances of the people who were sub- 
 ject to its controul. But all these are now 
 changed, and the feudal system and every thing 
 connected with it has now become as unsuitable 
 as it once was otherwise. Facility of communica- 
 tion, the change in the relative situation of dif- 
 ferent ranks of men, the varieties of personal 
 property and its vast accumulation, the different 
 sorts of wrongs most frequently committed, and 
 the punishments most effectual for their suppres- 
 tion, all require totally different laws from those 
 which prevailed among our ancestors, and the 
 country suffers and complains from none such 
 having been provided. Blackstone says, " Next 
 " to doing right, the great object in the adminis- 
 " tration of justice is to give satisfaction."* Whe- 
 ther the administration of justice in England gives 
 satisfaction or not must be determined by every 
 individual according to his means of information. 
 It would be rather unaccountable if it did, and 
 most people will be of opinion that it does not. 
 Almost every art and science has benefited by 
 the discoveries and diligence of the present times, 
 and it would be strange if law were the only 
 branch of theoretical or practical knowledge 
 which proved an exception to the general rule. 
 
 * Blackstone's Com. v.iii. p. 39K
 
 520 
 
 There is no reason for believing that it lies under 
 any such malediction. Let sufficient time and 
 pains be bestowed upon it, and it will soon be 
 found that its procedure might be simplified and 
 shortened, and the amelioration of the system 
 itself be made to keep pace with the progress of 
 general improvement. 
 
 SECTION IV. 
 
 i 
 
 On the best Means by which Improvements in the Law may 
 be suggested and executed. 
 
 THE only topic now left, is to consider how the 
 general or partial improvement of any system of 
 law can best be effected, when it is thought ex- 
 pedient to attempt it. A few words will comprise 
 all that it is here necessary to say upon it. If any 
 individual voluntarily undertakes an amendment 
 of the law, or if that task should specially devolve 
 upon him by virtue of the public office which he 
 holds, neither of these is a case to which any ob- 
 servation will here apply. The supposition now 
 made is, that a government wishes to make an 
 improvement in the law, and that the only ques- 
 tion is, to how many or what class of persons that 
 duty ought to be entrusted. For minor and con- 
 stant improvements, regularly appointed officers 
 may perhaps be found most useful. For those of 
 a more extensive nature, one or a few individuals 
 judiciously selected, with power to them to call in
 
 CIVIL LAW OF ENGLAND. 521 
 
 other assistance, will invariably be found more 
 effectual than a greater number. Justinian com- 
 mitted the formation of the Code and the reduction 
 of the Digest to Tribonian alone, who selected nine 
 jurisconsults in the first instance, and seventeen in 
 the second, as his subordinate assistants. Whe- 
 ther the superintendence of such a labour is com- 
 mitted to one man or more, their number cannot 
 well be too limited. It is a work in which the 
 mind of each individual selected should embrace 
 all the parts, and is one of those occasions where 
 in the multitude of counsellors there is hardly 
 ever found wisdom. The mode lately adopted in 
 this country whenever any public work requires to 
 be done, is to appoint a number of commissioners. 
 In 1823 a commission consisting of sixteen judges 
 and lawyers, and all possessed of equal powers, 
 was appointed to inquire into the state of procedure 
 in the courts of law in Scotland, together with the 
 course of appeals from the court of Session to the 
 House of Lords ; and another commission consist- 
 ing of fourteen persons, and composed in the same 
 manner, was appointed in 1824 to inquire into the 
 practice of the court of Chancery, and whether 
 any or what part of the business now subject to 
 its jurisdiction can usefully be withdrawn from 
 it. Whatever the result may be, no plan is 
 less likely to prove effective. In the first place 
 the commissioners are too numerous. The pro- 
 per execution of a commission of this kind re- 
 quires that the attention and attendance of each 
 commissioner should be uninterrupted. But to
 
 522 ON THE PRESENT STATE OF THE 
 
 expect that sixteen or fourteen commissioners, 
 each of whom has a variety of other duties to fulfil, 
 should regularly assemble together, is a most 
 chimerical expectation. Half of them will be 
 found to attend very rarely, or not at all ; and of 
 those that do, the one half will either secretly or 
 openly be found to counteract the other. In the 
 next place, it seems a mistake to couple judges 
 and barristers together in such an enterprise. 
 That a barrister should consult on equal terms at 
 three o'clock with a judge before whom he has 
 been pleading at two, is almost impossible. 
 There will be a feeling of inferiority on the one 
 hand, and superiority on the other, of which none 
 of the parties are altogether able to divest them- 
 selves. Not only does the admixture of judges 
 and barristers seem to be incompatible, but it 
 seems very doubtful whether judges ought ever 
 to be appointed to act on such commissions at all. 
 It seems highly proper, that judges should have 
 an opportunity of expressing their sentiments on 
 every considerable change projected in the law, 
 either orally or in writing, and in the manner most 
 respectful to their station and agreeable to them- 
 selves. If any commission has been appointed, 
 this might be done either before it had begun or 
 after it had terminated its labours, but there seem 
 to be considerable objections to judges acting as 
 commissioners themselves. They are apt to feel 
 a personal interest with respect to the increase or 
 diminution of their own power and authority : that 
 kind of activity and energy which is desirable in
 
 CIVIL LAW OF ENGLAND. 523 
 
 a commissioner, is neither suitable to their age 
 and character, nor to be expected from it : and 
 their own judicial conduct may form a very mate- 
 rial part of the inquiry. Upon these grounds it 
 will probably be found, that wherever it is thought 
 expedient to prepare the way for any improve- 
 ment in the law by the appointment of a commis- 
 sion, a small number of commissioners, and none 
 of them judges, are those alone from whom any 
 important service is to be expected. 
 
 It is however only from the appointment of 
 Commissioners of some sort or other, or the crea- 
 tion of new officers either by the House of Lords 
 or Commons, that a material amendment of the 
 law is most likely to proceed. From these Houses 
 themselves little can be looked for. The statute 
 of Edward 3,* which enacted that one Prelate, two 
 Earls, and two Barons should be appointed by the 
 House of Lords at the commencement of every 
 session of Parliament, for the redress of grievances 
 in the law, has for centuries remained a dead letter 
 on the statute book. The House of Commons has 
 in this matter nearly equalled the supineness of 
 the House of Lords. As far as internal policy is 
 concerned, they are better known to the public, 
 the one as a judicial tribunal, and the other as a 
 chamber of taxation and commercial regulation, 
 rather than as branches of a legislature employed 
 in framing general laws affecting the persons and 
 property of the whole subjects of the kingdom. 
 
 * 14 Ed. 3. btat. 1. c. 5.
 
 524 
 
 The executive government interferes nearly as 
 little with the state of the law as the Houses of 
 Parliament. Unless some measure comes to be 
 in agitation, where they are pressed by powerful 
 individuals or local interests, or unless some dif- 
 ficulty is experienced in the management of public 
 business or the collection of the revenue, the laws 
 are regarded as of inferior consideration. Every 
 member of the government is besides so over- 
 whelmed with the peculiar business of his own 
 department, that he has no opportunity to reflect 
 upon the general state of the law or the adminis- 
 tration of justice. The judges are equally busy, 
 and are besides not much encouraged to turn their 
 attention to such a subject. There is no other 
 person known to our constitution but the Lord 
 Chancellor upon whom every thing which con- 
 cerns the jurisprudence of the country practically 
 devolves, and the duties of such a supreme ma- 
 gistrate are thus beautifully described by one who 
 eminently possessed and displayed them in his own 
 person. " Peu content de cette attention particu- 
 " liere qui se renferme dans le cercle etroit de la 
 " cause des plaideurs, la sup6riorit6 de son genie 
 " lui inspirera cette attention g6n6rale qui em- 
 " brasse 1'ordre entier de la soci6t6 civile, et qui 
 " est presque aussi etendue que les besoins de 
 " Thumanite. Etre encore plus occup6 du droit 
 " public que du droit priv6 ; avoir toujours les 
 " yeux ouverts sur la conduite des ministres in- 
 " ferieurs de la justice ; venger le client tromp6 
 " de 1'abus qu'on a fait de sa confiance, et punir
 
 CIVIL, LAW OF ENGLAND. 525 
 
 " I'avidit6 du defenseur infidele, dans le temps 
 " que I'e'quite' du magistral fait eclater le bon droit 
 " de la partie ; rpandre un esprit de regie et de 
 " discipline dans tous les membres du vaste corps 
 " de la magistrature ; arreter 1'injustice dans sa 
 " source ; et par quelques lignes d'un r6glement 
 " salutaire, pr6venir les proces avec plus d'avan- 
 " tage pour le public, et plus de veritable gloire 
 " pour le magistral que s'il les jugeoit : voila 
 " le digne objet de la supreme magistrature. 
 " C'est-la ce qui couronne le merite de son appli- 
 " cation dans le temps qu'elle exerce ses juge- 
 " mens."* Lord Eldon has not thought fit to fol- 
 low these directions. He came into power at a 
 conjuncture when the decided change which was 
 taking place in the texture of society, wealth, com- 
 merce, and population of the country, indicated 
 that a greater change in our law and legal insti- 
 tutions would soon become desirable, than had 
 taken place at any antecedent period of our 
 history. Had he prompted, promoted, or super- 
 intended this great work, the length of his reign, 
 and extent of his influence, would have enabled 
 him to bring it almost, or altogether to its com- 
 pletion, and thus to have left a monument to 
 his memory, which it falls to the lot of few in- 
 dividuals to have the power of erecting. Unfor- 
 tunately for the country and his own reputation, 
 he has pursued a totally opposite course. Feel- 
 ing that his strength did not lie in the depth and 
 
 * (Euvres de D'Aguesseau, torn i. p. 185, 8vo. Ed. 14me Mercuriale.
 
 526 ON THE PRESENT STATE OF THE 
 
 comprehensiveness of his general views, so much 
 as in the extent of- his acquaintance with the mi- 
 nutiae of precedents and practice, and perceiving 
 also that the surest way of continuing in place is to 
 abstain from all innovation, his love of power com- 
 bined with his love of superiority, to induce him 
 to withhold from all decided improvements him- 
 self, and to look with an unfavourable eye on those 
 which were proposed by others. In this course he 
 has invariably persevered. It can hardly be ex- 
 pected that confirmed habits and opinions should 
 be changed at 75, but it is one of the greatest dis- 
 advantages of permitting an aged person too long 
 to occupy the same office, that he is apt to look 
 upon it as a private possession which he is entitled 
 to manage according to his own will and pleasure, 
 instead of regarding it as a public trust, which he 
 can neither conscientiously desire, nor ought to be 
 permitted to retain any longer, than while he is 
 both able and willing to discharge the whole of the 
 duties appertaining to it. It is probable that at 
 this moment Lord Eldon has no conception of the 
 sentiments which are almost universally enter- 
 tained of his judicial administration, either by the 
 persons who frequent his court, or by those who 
 are capable of judging out of it. He has never 
 heard the truth spoken with that freedom and 
 affection with which it flows from the lips of friends 
 of equal understanding. It is one of his greatest 
 misfortunes that through life he has made age, sub- 
 missiveness and mediocrity the passports to his 
 favour, and has as studiously kept aloof from men
 
 CIVIL LAW OF ENGLAND. 527 
 
 of liberal and independent minds, as he has kept 
 them aloof from him. There are several reasons, 
 both public and private, why I should have 
 abstained from these observations if I thought I 
 properly could, and there are none of a private 
 nature which could have led me to express them. 
 I never asked a favour at his hands, or met with 
 any fancied incivility or disservice from him, or 
 through his intervention. I am not aware of being 
 actuated by any other motive in giving them pub- 
 licity, but a conviction of their truth, and a firm 
 persuasion that with all the knowledge, industry 
 and sagacity which Lord Eldon possesses, he is 
 even now grievously hindering the improvement 
 of the law as a science, and has done an injury to 
 it as a profession which is almost irreparable. 
 While he feels no reluctance to testify the sense he 
 entertains of the errors and imperfections of the 
 law and its procedure, with the most unac- 
 countable inconsistency he omits no opportunity 
 of ridiculing and resisting every attempt which is 
 made for its rectification. But there is every 
 prospect that this state of things will not long 
 continue. It is almost impossible that Lord Eldon's 
 opinions can accord with those of his colleagues, 
 to the wisdom of whose policy they are in such 
 direct and manifest opposition, and the government 
 will at length see the indispensible necessity of no 
 longer permitting the obstinacy or procrastination 
 of one man to stand in the way of the wants and 
 wishes of a whole people. The fountains of inquiry 
 and discussion have been opened up : the streams 
 of information which they are sending forth are
 
 528 ON THE PRESENT STATE OF THE 
 
 augmenting and collecting ; and whether he re- 
 signs his office or retains it, he must either yield 
 to the current, or with all his doubts and difficulties 
 he will find himself carried away before it. 
 
 It is to avoid that precipitation to which this 
 dilatoriness invariably leads, that amendments in 
 the law should be projected long before the adop- 
 tion of them becomes indispensibly necessary. 
 No new system of law or material alteration in one 
 already established ought to be sanctioned without 
 full and fair examination. It is owing to the haste 
 of Tribonian to do that in three years which he was 
 allowed ten to accomplish, that the Digest exhibits 
 such a mass of incoherence and confusion. To press 
 the adoption of any legislative measure when in- 
 sufficiently known or imperfectly comprehended 
 is neither wise nor honest. It is to the hurry and 
 confusion in which the laws of England are made 
 that the greater part of their blunders and miscar- 
 riages are owing. Scarcely any permanent and 
 important measure can be figured, which ought 
 not, after it has been put into the shape of a bill* 
 to be submitted to the judgment of the public for 
 one year at least, and if it were to undergo a pro- 
 bation of several, it would usually be so much the 
 better. Whenever the government is persuaded 
 that any matter connected with the dispensation 
 of justice requires revision, the examination to 
 which the proposed alteration is subjected, can 
 hardly either be too general, severe or protracted. 
 Above all, it ought to be submitted to the inspec- 
 tion of those who are supposed to be most suspi-
 
 CIVIL LAW OF ENGLAND. 529 
 
 cious of its expedience, or hostile to its intro- 
 duction. Let such persons report upon it, not in 
 any kind of collective body, but what is invaria- 
 bly much better, in their own words, according 
 to their own plan, and upon their own respon- 
 sibility. If any objections have been offered, 
 let them be canvassed with candour, temper 
 and patience, and let the fate of the proposal 
 depend upon the result of the ordeal to which 
 it has been subjected. If upon a full investiga- 
 tion it appears that they are not sufficiently calcu- 
 lated to attain the ends proposed, or if they would 
 be accompanied with inconveniences which were 
 overlooked or undervalued, let them be rejected ; 
 but if they have endured this test, whatever be 
 their magnitude or importance, I believe that in 
 general the public interest suffers when either 
 timidity or local or individual interest prevents 
 them from being effectually and resolutely adopted. 
 
 I have now to solicit the indulgence of the 
 reader for the imperfect manner in which this 
 inquiry has been executed. From its difficulty, 
 novelty, and the variety of topics it has been 
 made to embrace, I have no doubt it is chargeable 
 with many and considerable errors and omissions. 
 These I shall neither be reluctant nor ashamed 
 to acknowledge ; and perhaps the public may not 
 judge of them too severely, if the principles I 
 
 M M
 
 530 ON THE PRESENT STATE OF THE 
 
 have advanced and the main purpose I have had 
 in view, be found deserving of its approbation. It 
 has been my endeavour throughout to confine the 
 topics of investigation to those of a strictly practical 
 nature; to proceed as little as possible without the 
 support of antient or modern law authorities; and 
 to introduce no speculations or suggestions tend- 
 ing to undermine or destroy any of our fundamental 
 laws or institutions. I have also anxiously abstained 
 from alluding to individuals or classes of persons 
 as far as has been within my power. This I have 
 found the most ungracious part of the task I had 
 undertaken. It is far from agreeable to be ex- 
 posed to the risk of giving offence where none 
 was intended, and still more painful to be obliged 
 in the course of argument to make observations 
 which may wound the feelings of those whom we 
 most highly esteem and respect. Had I been as 
 fully aware of these circumstances at the outset 
 as I am now, I should never have embarked 
 in such an undertaking. But I had gone on 
 so far that I was both unable and unwilling to 
 recede, and having resolved to go forward, I had 
 no alternative but to follow truth and fair argu- 
 ment wheresoever they might lead me. This I 
 have throughout endeavoured to do, though to 
 avoid hesitation and circumlocution I may seem 
 to have spoken with less diffidence than the diffi- 
 culty of the subject in discussion and the state of 
 my own mind demanded. My own opinions 
 I do not wish to retain dogmatically myself, 
 and I disclaim all desire to impose them upon
 
 CIVIL LAW OF ENGLAND. 531 
 
 others. The object aimed at has been to accus- 
 tom the well informed part of the community 
 in some degree to think and reason upon legal 
 subjects, and to participate more largely than 
 they have hitherto done', in those deliberations 
 which relate to the administration of justice, in 
 which they are so deeply interested. All profes- 
 sions are jealous of the application of general 
 reasoning to their peculiar mysteries, though 
 there is scarcely any art or science which has not 
 derived manifest improvement from it. The law 
 would gain as much by it as any other branch 
 of theoretical or practical knowledge, and the 
 disposition of the public is now favourable to 
 adopt any amelioration of which it may be clearly 
 shewn to be susceptible. That preposterous at- 
 tachment to the absurdities of our own law, and 
 blindness to the excellences of others, is now ef- 
 fectually removed, and the country is willing to 
 adopt good regulations wherever it can find them. 
 " Majores nostri, Patres Conscripti, neque consilii 
 " neque audacia?, unquam eguere : neque super- 
 " bia obstabat, quominus aliena instituta si modo 
 " proba, imitarentur. Arma atque tela militaria ab 
 *' Samnitibus, insignia magistratuum ab Tuscis 
 " pleraque sumserunt : postremo, quod ubique 
 *' apud socios aut hostis idoneum videbatur, cum 
 " summo studio domiexsequebantur: imitariquam 
 " invidere bonis malebant."* No written codes 
 which have prevailed in Europe are positively 
 
 * Salustii Cat. cap. 51.
 
 OX THE PRESENT STATE OF THE 
 
 bad, and many of them are possessed of high 
 degrees of excellence. It is not in the letter but 
 in the administration of them they are found de- 
 fective. With the laws of England it is directly 
 otherwise. The administration of law in foreign 
 countries is usually worse than the law, and in 
 England the law is worse than its administration. 
 In every thing which relates to the liberty of the 
 subject, in ensuring a fair trial in disputes which 
 occur between the crown and the subject, and for 
 many of the general doctrines of Equity by which 
 its courts are governed, the law of England can- 
 not be prized too highly. But in many matters 
 of the most frequent occurrence and greatest mo- 
 ment, the more one becomes acquainted with 
 courts of justice and books of law, the more one 
 perceives how widely the arguments there used, 
 differ from those which the unsophisticated under- 
 standing of the parties themselves would have em- 
 ployed, and how frequently the decision of the judge 
 is determined by the rules of a species of practical 
 metaphysic, which is protected from the contempt 
 which has overwhelmed that of the Schoolmen, 
 by no other cause than the power which it ex- 
 ercises over the lives and fortunes of those who 
 are subjected to its influence. It is time that this 
 mysticism should be swept away, and that both 
 the letter and practice of the law should coincide 
 with those broad and intelligible principles of 
 equity and convenience, which may recommend 
 them to the ordinary apprehension and approba- 
 tion of mankind. If I should in any degree con-
 
 CIVIL LAW OF ENGLAND. 533 
 
 tribute to hasten the approach of this auspicious 
 period, whatever the result may be to myself, my 
 end and object will effectually be accomplished. I 
 have always believed that free and unfettered inqui- 
 ry is among the greatest blessings with which civil 
 liberty is accompanied, and that the exercise of 
 this privilege is neither confined to those who are 
 dissatisfied with the government nor with its ad- 
 ministration, but may be pursued without disad- 
 vantage by all who sincerely desire to promote 
 the happiness and extend the prosperity of their 
 fellow subjects. - Whatever disfavour therefore 
 may be shewn towards me for what I have done, 
 I shall attribute it to my own incapacity, and 
 not to the demerit of the cause which I have here 
 supported. That cause I am persuaded must 
 eventually prove successful. Though I should 
 fail, abler men will follow, and finally achieve 
 that, to the accomplishment of which my powers 
 were unequal. In their success I shall greatly 
 and unfeignedly rejoice, and should this satisfac- 
 tion from unfavourable times or unexpected acci- 
 dents be denied me, I shall still be sustained by 
 that last and surest consolation of every one who 
 exerts his faculties of mind or body for the good 
 of the country to which he belongs the excel- 
 lence of his object, the fairness of the means em- 
 ployed for its attainment, and the rectitude of his 
 own intentions. 
 
 THE END.
 
 Lately was published, in Svo. 9s- 6d., 
 
 An INQUIRY into the PRESENT STATE of the 
 STATUTE and CRIMINAL LAW of ENGLAND. 
 
 By JOHN MILLER, Esq. of Lincoln's Inn. 
 Printed for JOHN MURRAY, Albemarle Street. 
 
 London: Printed by C. Rowortli, 
 Bell-yard, Temple- bar.