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practice. Take charge of it who may, the man who interferes successfully will do more for Scotland than could have been ac→ complished by any other exertion of patriotism.

ART. V. An Inquiry into the Present State of the Civil Law of England. By JOHN MILLER, Esq. of Lincoln's Inn. London, John Murray and Charles Hunter.


THE HE impossibility of distributing perfect justice under any code of human laws, furnishes no excuse for refusing to inquire into the defects of the system under which we live,-and still less for declining to correct them when discovered. Labours of this kind are always laudable; there are times when they become necessary. When dissatisfaction either with the doctrines or administration of the law, prevails to any considerable extent among the people, it is the imperative duty of the Legislature to give such serious attention to their complaints as may either remove the evil, or at least convince the sufferers that its continuance can neither be attributed to the inclination nor the indifference of their governors. The present is certainly such an occasion: Not that we believe that the great body of the people have laid aside their veneration for the grounds and principles of the Law of England, or are desirous of changing the great outlines of its practice: But that all classes, high as well as low, feel the necessity of some reform in its details, must be manifest to the most unwilling observer. In this nation too, such popular complaints have a peculiar claim to attention; for we believe, there is scarcely any country whose inhabitants are so well acquainted as the English with their own laws. Even the common people acquire some partial notion of them, while they gratify their curiosity in attending on the public administration of justice, and still more while they assist in it as jurymen. But the consciousness long felt and cherished by every Englishman, whose fortune and education place him even in a middle rank of society, that his opinion is of some weight in either maintaining or improving a system which, with all its real or supposed defects, he is proud to consider the best in the world, naturally leads him to desire a more general view of its nature; and the attainment of such knowledge has now, for a long time, been rendered easy and delightful, by the Commentaries in which this interesting and important subject has been adorned with every appropriate grace by the pen of Blackstone.

Few books have ever deserved, and few have obtained, a higher degree of popularity than his elegant work: although some critics have severely censured its illustrious author for standing forth as the undistinguishing apologist of existing institutions. How far such censure is deserved, those who think this article worth reading, will probably have qualified themselves to judge; at present we shall only observe, that there is nothing in Blackstone's work from which it can be inferred that he considered improvement in the law as either undesirable, or unattainable. He felt, indeed, that the next blessing to that of possessing a law so perfect as to command unqualified approbation, is that of being well pleased with the law under which it is our lot to live; and, therefore, he endeavoured to palliate those defects, of the existence of which he shows himself sufficiently sensible, lest the disgust occasioned by these partial blemishes, should induce his readers to withhold from the entire system that reverence to which, as a whole, he felt that it was entitled. Mr Miller has discussed the subject with a different view. His object is to show the necessity of amending the law; and he has accordingly placed in the strongest light both the multitude and magnitude of its defects. He has, indeed, sometimes rather overcharged them. Thus, at page 433, speaking of the vexatious number of appeals to which the suitor in our courts may be subjected, he makes a cause travel by the following road, which we really have not been able to find in the most accurate legal itineraries :—

"At common law, a cause may be brought by appeal from the Quarter Sessions 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."

But though we think it necessary to caution our readers against adopting Mr Miller's authority as decisive of what the law actually is, we are far from insinuating that his inaccuracies are such as to render the book in which they occur undeserving of attention. Sound views of what the law ought to be, are perfectly compatible with erroneous notions of what it is in some scattered particulars; and though a lawyer may often perceive that the examples alleged by our author, are not such as will justify his strictures, yet farther consideration will sometimes show that they might have been supported by instances to which no just exception could have been taken.

Mr Miller's book is divided into three chapters;-1. On the Constitution, Procedure, and Doctrines of the Supreme Courts

2. On some impor

of Common Law and Equity in England. tant Special Amendments, of which the Law of England seems susceptible. 3. On the Means by which the General Improvement, in the Administration of Justice, may most effectually be facilitated.

The first chapter is prefaced by a brief notice of the difference of opinion which has existed as to the expediency of the separation of courts of Law and Equity, which question the author is inclined, upon the whole, to decide in favour of the separation. He then proceeds to consider the constitution of the Supreme Courts of common law. He disapproves, as many other writers have done, of the number of four Judges, as leading to an unsatisfactory result, in case of an equal division; and he thinks five, or three, particularly the latter, would be preferable. On the other hand, many eminent persons (Paley is among them) have declared themselves in favour of four. Non nostrum tantas componere lites. But we agree with our author that, if four is the proper number, it is certainly not fit that it should, in the King's Bench, be almost always reduced to three, by the banishment of one of the Judges to the bail court in the morning, and to chambers in the afternoon. The separation (by the stat. 1 and 2, Geo. IV. c. 16.) of the Chief Justice of the King's Bench from his brethren, when he sits at nisi prius while they despatch without him the important business formerly transacted by the whole court in bank, is still more objectionable. On the same principle, we disapprove of the modern constitution of the Court of Exchequer. Thinking, as we do, that one Judge in equity is better than many, we see no objection to the Chief Baron administering the equitable jurisdiction alone; but the maimed condition of the court in his absence, would prevent its obtaining any degree of credit as a common law tribunal, even if its more ancient imperfections were removed. As a means of increasing the efficiency of the Courts of Common Pleas and Exchequer, Mr Miller proposes that the former should be thrown open to all the bar, and the latter be relieved from the dead weight of the clerks in court. We have never heard any reasonable objection to either of these propositions, or to that which follows them, namely, to abolish sinecure offices in all the courts, and to place on a new footing those of which the remuneration is disproportionate to the duties; a reformation which has already been well begun, and we trust will be effectually completed by the Legislature.

Our author is little inclined to admire the system of the common law in general; but the technicality of its terms and forms of procedure, is an unfailing subject of reprobation with him.

In most of these respects," says he, "equity being of much later

origin than common law, possesses over it a decided advantage. To whatever charges the equitable law of England may 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.”—p. 101.

We are not desirous of magnifying either branch of the law at the expense of the other; but yet we must say, in behalf of the phraseology of the common law, that we think it much less calculated to mislead the ignorant than the more every-day sounding terms made use of in equity. When a plain man meets with a law-term which he cannot even tell to what language he is to ascribe, he knows at once that he must seek an explanation of it, before he ventures to do any act where a mistake may injure him; but he does not so readily suspect that there may be some recondite sense lurking under a colloquial word, which he thinks he understands as well as a lawyer. Replevin and trover are strange words, but when once explained they are unambiguous; but how could a man, accustomed to the common use of the words trust and fraud, suppose that a trustee (if he has any regard for his own security) must act as if those who made him such placed no trust at all, either in his honesty or discretion? or that any court could possibly declare a transaction void upon the ground of fraud, at the same time that the Judge professed his perfect conviction of the integrity of all the parties concerned in it? We do not then "take it "for granted, that everything which is uncouth or mysterious "in the termsor phraseology of the common law is a serious "practical disadvantage;" (p. 101.) on the contrary, we think it may be often convenient that the terms used in it should not be such as, being familiar in common speech, are liable to acquire, in consequence of their double use, a double acceptation, forensic and popular.

The objection to the complicated variety of modes by which an action may be commenced in different courts, and even in the same court, s more forcible. This has arisen partly from the desire of theJudges in former times to facilitate the administration of justice, by removing the barriers which, at the original institution of the present courts at Westminster, were designed to confine particular descriptions of causes to particular tribunals, and partly from their wish to relieve the suitors from the necessity of going through all the circuitous forms of the process anciently required to bring a defendant into court. Both these objects have been attained by the use of certain fictions, not necessary to be here explained, by means whereof most sorts of actions may now be brought in any of the three

superior courts of common law, and the appearance of the defendant compelled by a single writ; and, where these fictions conduce to the ends of justice, and cannot injure a defendant, the courts will not suffer their truth to be inquired into. But as there are some cases in which the steps of process, supposed by these fictions, cannot by law be really taken, and others again, in which the supposition of such steps having been taken when the fact was otherwise, would produce injustice to the defendant, the use of the fictions is not, in such instances, permitted, and the plaintiff is obliged to go through the whole of the forms originally required. The most objectionable of these forms is that which, were it not for the use of the fictions above alluded to, would require that most, and, in fact, does now require, that many of the actions brought in the King's Bench and Common Pleas should be commenced by original writ out of Chancery. Our readers will be aware that the ancient constitution of the courts assigned suits in which the King, or his debtors or accountants were parties, to the Exchequer,-and suits between subject and subject, to the Common Pleas, with which, in cases of injury committed by force, the King's Bench exercised a concurrent jurisdiction, because such acts involved a breach of the public which it was peace, the office of the latter court proper to preserve. It was also, indeed, a court of error; but in this The Court of view we are not called upon here to consider it. Exchequer, then, as a court whose office it was to protect the King's interest, was always allowed to issue its process independently of any other authority. But as great part of the revenue of the Crown in those days arose from the fees paid by the subject for the administration of justice, the Courts of King's Bench and Common Pleas were not permitted, unless in a few excepted cases, to entertain jurisdiction in any suit, but by the authority of an original writ issuing out of Chancery, for which a fine was paid to the King; which appears to have been thought the easiest way of collecting the fee to be exacted on the commencement of an action. Mr Miller states, from the first Report of the Fee Commissioners, a case which shows that the expense of these dues, where they must be incurred, is sometimes severely felt.

"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 writ, and as the amount of the bond was so large, that the fine payable on obtaining the writ, being at the rate of L.5 for every L.1000, would have amounted to between L.1000 and L.1500; that circumstance of itself prevented the enforcement of the demand, as the estate of the person who was entitled to sue was then insolvent.”—p. 103.

Yet the number of cases in which original writs are necessary,

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