that, from the hustling and the crossing of principles, and even cases, the very embarrassment of administering the system must of itself in time bring about a change. When a watch fairly stops, even the despiser of lost minutes and unpunctual appointments remembers there are such things as watchmakers. There are signs, however, abroad, that the change will be accelerated by, and established upon, sounder and broader principles. The policy which gradually introduced exception after exception, seems, now that it has in so many instances verified the safety of the experiment, about to dethrone the rule. Lord Mansfield pointed out long ago the proper balance, had we in our turn but properly watched the scales; and, instead of the summary talent necessary to destroy evidence, condescended to learn to weigh it. Disability from interest, he said, proceeded from the presumption of bias, and from the public inconvenience arising from partial testimony. But these presumptions might be answered, by showing greater inconvenience from abiding by the rule. These contrary presumptions were, first, cases of absolute necessity; secondly, cases of presumed or argumentative necessity, which were nothing but a great degree of expediency.

Now, if there were no means by which, out of this nettlepartial testimony, we might secure the probability of plucking the flower-truth, it never could be expedient to receive it; and, in a great proportion of the cases which still remain under the millstone of exclusion, it would puzzle a whole family of sphinxes to show, that an equal argumentative necessity in behalf of justice, and equal means of decompounding out the truth, do not, in point of fact, exist. There is a common sense, however, and a good feeling stirring, which give one at last, (and we thank God for it,) a reasonable hope of surviving both legal and political exclusions.

In regard to the parties themselves; Courts of Conscience, where the condition in life of the litigants, and the want of experience and authority in the court, might have seemed insufficient securities, have long and safely led the way in admitting their general examination. The County Court Bill is about to invest its ancient domestic jurisdiction with the same authority in all cases under L.10. We look forward with the utmost anxiety, and yet confidence, to this great decisive measure, which will give the public an ample opportunity of observing the success of the experiment in both directions. Hitherto, there seems no cause to doubt the conclusion, to which the sort of reasoning that general principles afford would bring us, respecting the value of the testimony to be thus obtained. We are not startled by the remarkable concurrence of reproach under which it la

bours. The deficiency in its result under all former management, is amply accounted for by the shape in which it has been taken; this is the real warning which the failure of their experiments should convey. Pothier complained that, during a practice of forty years, he had never known but twice a party upon oath retract from the statement hazarded in his pleadings. The French lawyers, in like manner, allow at present that, from the method in which the examination sur les faits et les articles is conducted, a party with any cleverness may leave his adversary no advantage from it but the expense. Lord Kames speaks of it as nearly useless and abandoned under the Scotch law; where, before it is entered on, every possible security is taken against the possibility of contradiction, should perjury be committed under it. Heineccius treats it as a dead letter with them, and wrote a treatise expressly, de lubricitate jusjurandi suppletorii. When Sir James Scarlett says, that he has only twice, in all his experience, found it worth his while to read upon an issue the answer to the bill, the distinction is pretty evident between the answer so got at, and that which he would

• Elementa, 245. Suppletorium jusjurandum, si verum fateri velimus, in jure nostro, nullum reperit præsidium. Comparative legislation, properly conducted, would be little less instructive than comparative anatomy. But it can only lead us to err by rule, as often as the facts are carelessly observed, or when no due analogy exists between the subjects which are compared. Mr Bentham (to instance a case in itself of only secondary importance, but, if correct, valuable as a symptom) mentions twice that alibis are a peculiar feature of the accelerated and final nature of an English trial. Whereas, Le Graverende, 2. v. 211, speaks of them as being une ressource si souvent employée par de grands coup'ables.' Mr Peel, not long ago, astonished the House of Commons by a more violent example of the happy state of intellectual digestion, which can apply and assimilate any fact, however remote, that Providence may throw up on the sea-side of one's understanding. Crimes of violence have been lately more frequent among our agricultural than our manufacturing population. This, it appears, is not a mere Anglicism; for, on comparing the French returns, murder stands proportionally high as an agricultural offence in their most agricultural department, Corsica, to wit. Here is indeed a power of philosophy that cannot be kept out on any future vacancy from the Royal Society's chair. Mr Jacob must go to Corsica to take their average forthwith of corn and crime. Without reading Boswell's or Benson's Tour, surely its fierce Corcyra condition is too notorious for any one to found on it a theory respecting agricultural man, who is not prepared to illustrate man in his hunter-state, by some fortunate coincidence between a young Iroquois chief, and a young lord at Melton.

have himself extracted from the viva voce cross-examination of the same defendant at an Assizes. As to affidavits, it is admitted that they are recipes for perjury, made easy to the most timid nerves and meanest capacity. When the coast is strewed with these shipwrecks on the same rock, should we persist in copying so approved a method of frustration into our projected amendments of the law, we shall probably be only preparing disappointment to the friends of justice, and amusement for Lord Eldon. If there is a point that may be considered indisputable as a general maxim, it is the superiority of vivâ voce examination over prepared and written questions. No contrary inference surely can be intended to be drawn, as we have heard suggested, from the experience before Commissioners of Bankrupts. Should such examination of the bankrupt be thought not as satisfactory as could be wished, something perhaps may be allowed to the insufficiency of an occasional tribunal, especially if the case be, (as Mr Cooper states in his French Letters,) that commercial causes are declared by all foreign merchants to be worse administered in the metropolis of the commercial world than in any trading town in Europe. In reference to the observation, that a clever rogue is found, when orally examined as a bankrupt, to get an advantage over his more simple, but more honest, comrade, it is in vain to think of depriving strength, either of mind or body, of their respective advantages for escape; but it is paying the court a bad compliment, to believe that the advantage would not be still greater, were the examinations carried on in an examiner's office; particularly since there can be, in this respect, no difference between the examination of a party and of a witness; and any accidental imperfection that may deduct from the deficiency of viva voce examination in the one case, must apply to the other precisely with equal force. There can, of course, be no objection to both parties agreeing to accept the evidence, each of the other, in a written form: Also, when oral examination was insisted on, by either party, limits might be put upon any apprehended abuse or vexation accompanying the obligatory attendance, should the party turn out to have been subpoenaed unnecessarily, by leaving in such a case a power of liberal costs at the discretion of the court.

Whatever else may be in shade, great legal reforms are evidently coming on. Could our voice be heard, we would beseech the two extreme parties to approach this vast subject with a spirit suitable to its importance. The old Italian painters used to shrive themselves, and take the sacrament, before setting to work on a great picture. It can scarcely be a superstition to demand of our less solemn and enthusiastic times, from those who offer

themselves as repairers and sustainers of the ark that contains the tables of our laws, zeal with caution-charity, and also knowledge-a love of our country sufficiently deep to speak with respect of her institutions, and yet sufficiently manly and enlightened to admit her errors. On one side it may not be too much to learn, that ignorance of the views of other men is not indispensable for the correctness of one's own; and that it is possible for opinions that are not insolently expressed, to be yet honestly, boldly, and successfully maintained. They should extend to rivals-from whose bare and rugged channels they are diverting the stream of science in a new direction—some indulgence, along with the contemptuous requisition, Quæ Juvenes didicere, senes perdenda fateri.'

If the lion is to lie down with the kid, collaborateurs must be advertised for in more gracious terms than the following: In ⚫ what corner of the inns of court, these receptacles of sham learning, are we to find, in the conveyancer and draughtsman, whose 'business it is to make two words grow where one has grown before, in the briefless advocate or in the superannuated judge, the jurist who has surveyed the field in all its bearings with sufficient care, and an eye directed solely to the ends of justice?' On the other hand, let the lawyers strive to put off the old man,' and (without minding the threats to reduce Westminster Hall to a heap of ruins, as some rookery that wants pulling down) let them join in Lord Mansfield's cry, We do not sit here to take our rules from Siderfin and Keble.' They will not gain favour for themselves or for their learning, by attempting to represent as revolutionary any measures calmly proposed to Parliament for making the law cheap, sure, and speedy; nor is it decent to be, as it were, demanding compensation even for one's knowledge, when the improvements of a more comprehensive system seem likely to supersede it. Shakspeare's quibbles may inform us that one race of sellers of points have quietly yielded to the competition of a more useful, if not more ingenious manufacture. Further, it becomes no understanding (least of all that which we know to be so characteristically direct, that when it is by accident driven to swallow a crooked argument, it seems compelled by some inward mechanism to remould and reproduce it straight) to withdraw, upon a grave discussion, the public mind from the real question-the merit of the propositions-by interposing arguments which would have been ridiculous any time these hundred years, in any other science. The statement, that the country has prospered under the old system, is an answer only to those, if any, who have pretended that the diseases of our law had eaten out the whole energies of our na

tional strength; not to men who only protest against the folly of trying the digestion of a great country, by making it swallow quantities of nonsense, because it can do so without being much the worse for it. It is no less irrelevant to say, that the people are satisfied with the laws as they at present stand. It is in the nature of such a subject, that the people can have very imperfect means of forming an opinion one way or the other. At all events, it is an imposition on their ignorance, and an abuse of their confidence, if any possible improvement is discouraged, because it is found that it can be delayed with impunity. Instead of voting a reward to Jenner, Parliament ought on this view to have passed a vote of censure, grounded upon the vulgar prejudices which are not yet quite extinct, and treated him as a pestilent fellow, who sought to dissatisfy the good people of England with their constitutional old small-pox. Our ancestors had a proverbial story respecting Tenterden Steeple and Goodwin Sands, by which they mocked those holiday observers, who connected as cause and effect things that were in their own nature mere coincidences. It will be only a proper compliment to the present Chief Justice of the King's Bench, to make it again a popular retort on all similar sallies of legal logic.

The law is the common atmosphere we must all breathe. It is not merely at the moment we are engaged as parties in a lawsuit that it ought to be to every man an object of extreme interest. We have the same concern, every one of us, in its improvement, that men in health have in every conquest over suffering achieved by surgery or medicine. The sooner we get our law established on reasonable foundations, the better; then, and not before, may those who hate changes expect to enjoy a little quiet.

6

In taking leave of Mr Bentham, we must repeat our regrets that eccentricities and impracticableness, to a point at least commensurate with his genius, put such a fatal drag on the progress of his philosophical opinions, and thrust him out of the rank where that genius ought to place him,-among the forwarders and sharers of our most immediate changes. It is in the main unfortunately his own fault, that he should be necessitated to complain, the individual must be out of the way before the 'time can come for his words to pass for whatever may be their ' value; and the generation remains to be formed, whose thanks 'will not be wanting to the author's ashes.' His writings seem to exhibit a contest between Momus and Minerva, which of them should have the greatest share in fitting up this singular understanding. They are a picture, where Ostade's alehouse boors are sitting, with pot and pipe, among Poussin's shepherds,