there is no device suggestable (for none was pretended to be suggested) by which any improvement in so important a point towards the security of truth, as the mode of taking evidence in

Chancery, a common injunction to stay proceedings at law upon a bill filed without any affidavit of the fact, followed up this declaration with a naive account of his own proceedings. I have known this happen to 'me in practice; I have had a copy of a promissory note sent to my chambers, with a statement that an action had been brought by the holder against the drawer; and I was requested to draw a bill of injunction, without the suggestion of a single fact; upon which I drew a bill of injunction, inventing of course, out of my own head, a set of facts, which were so introduced, and were so connected with the promissory note, as to make it appear that there was a prima facie equitable ground why there should not be execution taken out. I recollect considering very well whether that was a right thing to do; but I thought this, that if those who had the control of a court of equity did not choose to take away that species of defence to a legal proceeding, it was not for me to say my client shall not have it.' The very well' applies, we think, rather to the recollecting than the considering. It would have been quite as well if Mr Shadwell had considered a little farther, both principle and authority. The principle of this class of injunctions was founded, as explained by Sir T. More, to the complaining judges, (whom he invited to dinner in the Council Chamber for this purpose,) on the necessity of those times, in order to relieve the people's injury,' not aggravate it; and to reform the rigour in the law by truth,' not delay its justice through falsehood. The species of defence to legal proceedings,' contemplated by those who originally introduced injunctions into a court, (whose favourite title was long a Court of Conscience,) was as different from that to which it is now applied, as the object for which the Temple was built, and that to which our Saviour reproached the money-changers with perverting it. The judicial authority of the court can furnish as little shadow of a sanction. Mr Shadwell was brought up at Gamaliel's feet, and might have found a motto to his Mitford (for the benefit of at least his pupils) in the following notice from a judgment of Lord Loughborough's, 3, ves. 501; which shews the doctrine preached in it is neither novel nor obsolete. A pleader ought, fully and fairly, without any gloss, to state the instructions which are 'given him. It is no part of the duty or business of a pleader to make a case, but to state it. In the old books, it is stated to be commendable in a pleader to say, non sum veraciter informatus, ideo nihil dicit. The mischief of such laxity (like the more public scandal of attempting, by what is unfortunately so well known under the name of browbeating a witness, to extinguish the torch of truth, instead of light it,) is not limited to the immediate injustice. The general administration of justice is embarrassed. The one practice prejudices, in fact and in opinion, the only efficient mode of taking evidence; the other burdens every step with the obligation of additional formalities. In another part of his evi

our courts of equity, can be introduced, without commencing the reformation in the structure of the court itself. Lord Thurlow was destined for years to administer a system of evidence, which, on the Duchess of Kingston's trial, he had denounced as wretched it remains to be seen whether Lord Lyndhurst will find the means of freeing his new judicature from trammels that every hour's experience of his professional life must have taught him to condemn.

Our present limits leave us room for nothing beyond a sum

dence, Mr Shadwell, in consequence of the very flagrant abuse' made of references for scandal and impertinence, thinks it would be better if the sanction of counsel were required. It is very plain, however, that an additional expense of signature, but not an additional atom of security, would be thus obtained, if counsel were to exercise no more prudent a discretion than that of which he has himself given the example, as above. It only makes the matter worse, to say that the difference between this and the other admitted cases of ambuscade and defensive warfare, as settled at a consultation, are differences but of degree. In such questions the degree is every thing, In all points of such very doubtful casuistry, instead of speculating quam prope potest accedere ad peccatum sine peccato, an equitable mind will take care to stop within the line, and not go an inch beyond the point to which, by the concurrence of common consent, he is impelled. Commissioners may report till doomsday, and Mango Capac himself bring us down a code from Heaven, but without judges perseveringly selected on those principles of efficiency and merit, which so justly distinguish the late excellent appointment, and a Bar that can draw a line of duty and abide by it, we shall be like an admiralty that should imagine every thing depended on the ship; nothing on those who were to command and fight it. Mr Bentham, of course, protests against the sham indignation of the judges upon sham pleas; when some miserable attorney, made into a scapegoat, is immolated with great ceremony by the arch-sacrificator, who has drawn a hundred times worse with his own sacred hands. But, for the 'sake of deluding the people, it is now and then necessary to offer up an 'attorney.' Whilst, for any particular instance at present, he puts in the apology, that the mischief is not in the individual, but as a part of the system; less in the violation of any rules, than in their observance. It is plain, however, that in his Utopia, such practisers, instead of being raised up to the petty woolsack, would be dis-barred, with accompaniments, not unlike the ceremony under which the copyhold widow of certain manors lost her free-bench. For ourselves, when we came to this part of his statement, as once elsewhere happened, whilst reading the adventures of a more chivalrous Sir Lancelot, Quel giorno pur non vi leg'gemo avante;' but turning to Mac Flecknoe, we provided ourselves with comfort, in contemplating the other half of his no less illustrous patrony

mic.

mary of some few of the considerations which have been impressed upon our minds by Mr Bentham's examination of the first and last of the topics above alluded to. Practical people would as soon expect to be asked to decompose the air before they breathe it, as to be required, before they believed, to ascertain the principles of belief. Nature, indeed, seems to have protected real life pretty stoutly against any evil effects from the subtleties of philosophy upon this subject; and though, when we advance further towards comparison and detail, we may frequently regret the want of a moral thermometer to dip into the human heart, and mark the different degrees of assurance, as well as of motives and desires, both in ourselves and others, yet the matter will not be mended merely by our agreeing to speak the language of arithmetical precision, as though we really had invented such an instrument. There is less risk of error in acting on what we know are only approximations, than in adopting the nominal perfection of an imaginary scale, of which we feel that we are not in possession, and which, therefore, we cannot be actually using. It would have been only a multiplication of interminable contradictions, and supporting a nominal science with ropes of sand, if, previous to the invention of the thermometer, the ancients, instead of describing the weather merely as hot or cold, and to-day as hotter or colder than yesterday, had sought the appearance of a certainty, of which they could not have the reality, by arranging their impressions in a row of figures. We can perceive no ground for belief, either absolute or partial, but our experience of truth and probability-and our own experience leads us to no higher point of accuracy than is implied by the imperfect standard of expression now employed; which seems (however unfortunate the fact) to correspond with the imperfect shades and distinctions existing in our own mind. The other theory that founds belief upon veracity, or a mere natural propensity to believe, furnishes us with no better instrument. Besides, how can the simple fact of belief, grounded on such assumed propensity, be a test of truth, except as far as the reasonableness of the instinct is confirmed by experience? We find, accordingly, in practice, that to whatever degree the principle may exist, and however we may choose to compliment it with the title of innate, it is soon overcome by a contrary experience; as for instance in the case of those who have lived among liars, or are themselves wanting in veracity.

Belief derived from evidence, and conviction produced by reasoning, are the two great moving powers and guarantees of human opinion and human conduct. Destroy this reliance en

tirely, and an empty boat drifting in the middle of the Atlantic, is as useful and as noble a thing as man. Suppose our confidence in either of these criteria of truth to be only partially damaged, the dismasting and unruddering of our nature will be complete, in the same proportion as so insane an experiment may happen to prove successful. In all discussions, therefore, on the principle of belief, and the force of evidence, time is worse than thrown away, if our abstract doctrines are not made solid and practical enough to serve as a foundation for the actual weights they must have to bear. Moreover, upon any given occasion (whatever may be the subject) where we have to satisfy ourselves of the truth of facts, we are responsible (besides the increased chance of mistake in our immediate determination,) for all the confusion that must attend the arbitrary invention of inconsistent and fallacious rules, on a point of such universal application and general concern. Belief, as distinct from mathematical certainty; doubt, as depending on insufficient or contradictory probabilities; and disbelief, being only that form of belief which implies a triumph over and rejection of inferior by superior evidence, are states of mind with whose actual existence every one is familiar. As reasonable beings, it is our duty on all occasions to take every precaution that these several gradations of credit are in as strict conformity as possible with the proper probative force of the facts to which they are applied. As far as this relation is incorrect, we are imposing certainly on ourselves, and probably upon others.

It is an easy way of dealing, whether with mankind or facts, and saves a deal of trouble in inquiries and in individual distinctions, to divide them at first boldly and broadly into castes, and judge of them accordingly. But nature will not accommodate itself to such artificial moulds. Though we may clip our box-tree into the proper model, the self-willed and ill-regulated shrubs about it, instead of profiting by the good example the gardener sets before them, will probably go on shooting and straggling into boughs and branches as before. It is with evidence as with other things; one cannot have it always cut and dried one's own way; in such a case, to insist upon this or none, is rather the sulkiness of spoiled children than the wisdom of reasonable men, balancing inconveniences and choosing for the best. The manly way in which Lord Mansfield dealt with these considerations, when they came judicially before him, places him. among some of his brethren like a philosopher among school divines. Accordingly, the Calvinistic school of jurists, who divide witnesses into the elect and reprobate, appear at times to

have been as much startled by the unexpected reality of good sound out-of-doors sense, in the midst of their shadowy unsubstantial notions, as Virgil's ghost was, at the flesh and blood, and armour, of Æneas.

It is plain, that before the rules by which belief ought to be guided within a court of justice can be satisfactorily fixed, it must be settled upon what principles it is regulated without. Now evidence is either direct or indirect. All cases of direct evidence assume that credit is due to our own senses and to those of other people; and also, that we may rely on the veracity of our informers for such facts as have not fallen within our own observation. In all cases of indirect evidence, whether called circumstantial or presumptive, this further supposition is interposed; namely, that we can trust our own experience and judgment, not to mistake an accidental relation of facts for a necessary connexion, otherwise we might be constantly inferring from particular circumstances, consequences which do not legitimately follow.

Unless both these suppositions are admitted, not only must we shut up courts of justice; but the world's great clock would cease to beat, and the pulse of social life stand still. The antients, and some modern civilians, have gone largely into this latter division of argumentative deductions, under the name of artificial proofs; in opposition to the outward evidence, obtained immediately and exclusively by the senses, which latter proofs they called in distinction inartificial. But so little real advantage has attended the laying down strict rules for judging of these presumptions, that we never yet met with a person who knew any thing of these ponderous writers on Presumptions, beyond their names. The English law has, at least, escaped the disgrace of this supplemental reading that is never read,' by leaving the whole chapter to that summary, but vulgar commentator, Common Sense. Burnet mentions a Treatise on Presumption, attributed to Lord Somers. The interest raised by the trial of Donellan, brought out another. Mr Bentham's observations on this subject, are characterised by the extraordinary extent and minuteness of the anticipative and critical survey of circumstances on which he enters. But, notwithstanding the voluminousness of prior continental writers, nothing can show more strongly their backwardness, or the insufficiency of mere learning, than the importance which M. Rossi attaches to Mr Bentham's distinctions between evidence direct and circumstantial; as also to those between circumstantial and evidence strictly secondary. It seems that many condemnations have been