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Vol. II.)

Heads of an Esay on Civil Jurisprudence.



be distributed totally different from an terest of nine millions of people should be estate in the funds, though both are essen- facrificed to what is perhaps only the tially alike as far as regards the mere imaginary interest of 3col. property.

Hence landed property is The law of Escbeat is another of these Taid, in the language of the law, always to cruel and unjust principles, derived from descend, while personal property is allow. the feudal superstition. That the offence ed to ascend. In other words, if a man, of an individual, who is guilty of fel ny, possessed of a landed estate, unfortunately should not only caule the whole of his real dies without a will, or if that will be not property to revert to the lord, but should formally executed, that estate shall go to incapacitate the whole of his family, both the 48th cousin, in preference to his father upwards and downwards, for twenty geor mother, though the miserable parents nerations, from the power of inheriting may perish in a work house. What but any landed property whatever, is so shockthe criminal indolence of a legislature, ing an invalion of all equity, of all humaadded to the selfi sh views of the profeffors nity, that the legislature which fanctions of the laiv, cou'd permit such a lystem of the continuance of such a law for a single legal injustice, such a contradiction to the session must be unaccountabiy inattentive very spirit of all laws, to disgrace for cen. to their first duty, which is to establish as turies the code of an enlightened narion? perfect a system of jurisprudence as may

On the same principle it is well known, be for the whole realm. that if a person, fraudulently disposed, I cannot conclude these instances of ab. only invests his property in land, at his surdity, without noticing a decision which death he completely wrongs his creditors but lately took place in a court of justice; of all the debts which he had contract. I do not exactly recollect where. A phyed, perhaps entirely on the credit of that sician sued his patient for attendance upsame landed property ; as land by our law on him during a fit of fickness; buit, to is not chargeable with the just debts of the the astonishment of all reasonable persons, proprietor. Those who are conversant in the court discovered that a physician legal antiquities know the reasons upon stands upon a different footing from all which theie distinctions were formerly other men, (I say oll, because the lawyers established; but no man can thew the take care to be paid before hand) and that [1 allest rcaíon why they at present should he has no right to demand any remuneraexist.

tion for his personal services. I think Thus also primogeniture is the stand- honorarium was the barbarous phrase by ing principle of our law of descents. But which the plaintiff was defrauded of his this is not only departed from with re- just demand: bur, furely the faculty may {pe&t to personal property ; but fo absurd say with Falstaff, “ I like not such grinis this relict of feudal barbarisin, and so “ ning honour as Sir Walter Blunt hath.” fatal in its consequences, that, contrary to Reason and conscience dietate that" cvery the systein of chose who eftablished it, our labourer is worthy of his hire ;” and that legislazure has been obliged to sanction a system of law is defective, which preciudes Continual violation of it in teftainentary any individual from the recovery of his disposicions; and even in most cases where right. Nay, the injury is even increased, the law unfortunately happens to be the when this preclusion is founded upon Come distributor of properiy, the event is la- obfolete principle, which effords a show, mented as a most fatalaccident, and is often or more properly a mockery of justice, to attended with the worlt consequences; con- the uiter exclusion of the substance and figning the younger branches of a family teality. to dependance, beggary, and proftitution. The other evils which result from a

I have heard but one argument, why want of lystem, principle, and theory in the law should not adopt a better distribu- our laws, are innumerable. Hence that tion of the effects of inteftates; and that is, uncertainty, that chicane, chat difficul. that it might prove injurious to the systein ty, which is ruinous to the suitors, and of hereditary nobility. , This, huivever, only protirable to the retainers of the I cannot account an argument of general courts of justice. Hence the volumes of cogency.

In the case of nobrity an ex- contradictory precedents, which render it, ceprion might easily be established, and a in innumerable cales, difficult to procertain portion of property might be al- nounce what is the law. Hence, is a ways reserved to accompany the title. I threwd and sarcastic writer observes, " our respect the nobility of England, and feel “ laws are studied, not to be understood, no predilection for

any levelling system; “ but to be disputed; pot to give inbut it cannot be right that the real in- « formation, but to breed confufion."




The fact is (as was intimated before), time, or to take them up upon the authoone part of our laws is founded upon rity of private compilers, who had no feudal, another on commercial principles; fanction either from the legislature or the a code, to be practically good and uteful, courts. ought to be founded on the broad balis of How inconsistent is all this with the general abstract juftice. In the detail, it fir plicity of that never enough to be admust be adapted in fone measure to times mired inftitution, the Trial by Jury; and and circumstances ; but no part ought to how ineffectual must such a complex and be adapted to times which no longer have voluminous system be to the direction and any connection with the habits or man. government of a people ? ners of society, or to circumstances which Not only in the laws themselves, but in are long and deservedly obsolete. all the forms of law, fimplicity ought to

The Second principle that I should be studied. For instance, there is not a infift

upon in a code of laws should be more verbose, intricate, or expensive proplainness and fimplicity. What is ir tend- cess, than that of a common recovery : ed for the government of all, should be this, and levying of a fine, are called Ficclear and plain to all, otherwise men are tions* in law, and the sole object of them expected to act according to maxims is, that when certain parties, who have a which they do not comprehend; and this contingent or entailed right in an estate, is the greatest of tolecisms. It is a very agree, they may, in legal language, bar wretched piece of chicanery to say, that the entail or the dower; in other words, the laws of any country may not be made · limit the disposition of a teftator. Now, fimpic, plain, and intelligible. If any one would it not save much labour and exscience, if any one exertion of the human pence, if the whole of this false and temind, admits of fimplicity and perfpi- dious process was fimplified; and fince it cuity, it is this; the study of nature is is now established, that the agreement of necelsarily involved in difficulty and ob- certain parties shall bar an entail, what scurity, because the views and designs of more would be necessary than to summon Omnipotence must be always difficult to them before a court, and make them re. a finite being. The science of theology cord their consent and agreement in the must ever be, in some measure, obscure, simplest language, and in the fewest words because it relates to the being and artri- that the case would admit of? butes of an infinite and all perfect exist. The language of the law ought also to ence. But law relates merely to the com- be the simplest that could be adopted. In mon affairs of life ; its balis is the fim- this country for instance, whatever was plest branch of ethics, that which regards formerly the intention or the use of special the transfer of property, and the common pleadings, it is well known, that at preduries of honesty and justice. It is sur. fent the mesne process has no influence in prising even how the laws of a country can be made difficult or cbfcure. They can be only so when local and obsolete pre

* The very name of fiction should be avoid. judices are adopted for their basis, and

ed in the adıniniftration of justice, the very where a fund of ingenuity has for ages .object of which is truth. Every thing that been employed to perplex and confound rejected. Criminal jurisprudence is not the

• tends to vitiate the moral principle thould he them, for selfish views and private pur- object of this paper, otherwise it would be poses.

proper to notice, that the oath of juryIn almost every country of Europe, men and witneffes is very frequently violated how involved, how difficult, and even un- froin a necessary attention to mercy, in pare certain is the law of deicents and inhe. ticular cafes. I allude to the returning of a ritance. In our own country, volume af- false valuation of an article stolen in the in: ter volume has been written on the single dictment or verdiet, left the culprit should be topic of contingent remainders; and yet

convicted of a capital offence. If we are to the subject remains in doubt and

retain for per

ages the full feverity of our penal plexity full.

code, it would be much the fureil and fatest Nay, we have not in England, and I way, .by a new act of parliament, to enable believe, in few countries on the continent, jurymen, instead of pronouncing “ guilty to

the value of," to pronounce at once “ guilty so much as a book to which we can refer

of a capital, or of a clergyable felony:" Nill as a standard authority. Our laws are

having it understood, that stealing to a certain scattered through nearly a thousand vo- amount was a capital offence, except in case lumes, where the laborious professor has of some particular extenuating circumstances to collect them at an infinite expence of in the discretion of the jury.


Vol. II.] Heads of an Esay on Civil Jurisprudence. 949 the determination, and the pleadings are I might indeed turn the argument scarcely even referred to on the trial ; and against my opponents, and I might fay, yet an error or mistake in the pleadings that in a country where the expences of may prove an obstruction to the objects a law-suit are so enormous, as when proand purposes of fubftantial justice ; be- tracted for any length of time, to beggar fides that, they serve greatly to enhance any man who is not very opulent, and the expence. Now, as this is the case, why where the taxed costs, which are allowed, hould not the parties, upon every occa- feldom amount to a third part of the acSion, be directed to plead the general if- tual expences, the Atrongest inducement sue, and leave the investigation of the is held forth to malicious persons to come cause, as it in fact now is, entirely to the mence a fuit upon frivolous pretexts. court and jury which are to try it?

I know many persons, who would raAs my professed object is civil juris. ther give up a small matter of property prudence, I forbear to norice the gross ab- than risk the expence and evils of a law. surdity that a flaw in an indictmeni, an suit, however unjust the plea of the plainerror in language, fometimes accidental, tiff; and I knew one melancholy instance but, I am told, fomern es also intentional, in a fifter kingdom, where, unhappily, in the clerk of the court, should com- there is rather more of a litigious spirit pletely obstruct and defeat the process of than in this, in which an equity suit (as justice in the prosecution of an offender. it was called) was commenced and carried

THIRDLY. From a total disregard to on precisely upon these diabolical princi. these principles results not only the un- ples, and ended in the ruin of the unfor. certainty, but the intolerable expence, in tunate defendant and his family. obtaining justice. I think I may say, in This could not have been the case in every part of Europe, and certainly America, where, as Mr. Barlow ftates, among ourselves, Nulli vendemus jufti- the whole expences of a law-suit amount tiam, is one of the sacred maxims of our to only ten fillings. Magna Charta ; but surely, without any It is the expence of the law 'which violation of language, or of decency (and creates the great grievance of our process I wish to offend against neither), it may and imprisonment for debt. The evil is be said, that wherever the expences of law not that a man, who has imprudently, suits are so enormous, that none but a and wickedly, perhaps, incurred a confi. very rich, or a very imprudent man, dares derable debe to an industrious tradesman, to engage in them, justice is virtually suffers the loss of liberty ; but that a poor bought and told.

man, who, in the full prospect of being It is a base and trifling quibble of the able to pay, runs in debt to the amount Demetrius's of the law, that the great ex- of a few guineas, but by the unwarrantpences of law suits serve to counteract the able expences of a law process, which he Ipirit of litigation. Such reasoning re- is unable to avert, is involved in costs to minds me of Muley Ishmael's mode of the amount of at least ten times that füm; preventing robberies, by extirparing the is ruined and imprisoned, not by his own whole inhabitants of a country, men, wo-folly and injustice, but by the folly and men, and children, where a robbery was injustice of the laws. committed. Certainly, if the expences of One chief cause of this enormous exlaw-suits are such as to disable a poor 'pencé is the employment of advocates, or man from seeking redress, and to de- counsel; a body of men for which there ter every application to the courts of jus. could be no use if the laws were only fimtice, except where the object is consider- plified and reduced to a fystem. Indeed, able, the number of law-suits, upon arith. I am much disposed to question their utimetical principles, must be proportionably lity in any circumftances. As far as relessened. But in such a country, can it be gards the examination of witnesses, the said, that justice is fairly and impartially person who conducts the suit ought to be administered? Let any penalties, which fully adequate, and, even from his previous the legislature shall direct be laid upon knowledge, more capable than a franger, the suitor, who lhall commence à vexa- As to nratory, it never can be effential to tious and malignant action, and let them the investigation of truth ; and if it has be enforced at the discretion of the court any effect upon a trial, that effect must be and jury ; but let not the honest plaintiff a bad one. If the truth is fairly displayed be deterred, by the shameful expence of upon the face of the evidence (and it can obtaining justice, from bringing his wrongs come out no other way), surely there is no before the bar of his country.

danger of an honest jury judging other


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wife than according to right. Wha: ef- cannot help considering the present courts fect then can eloquence poflibly have, but of equity as an actual violation of the to warp or confound the judgment of the Britij conftitution. It is the vital prin. jury? And indeed, of ivhat use is the ciple of that constituzion, decidedly exjudge, but to explain the law, and to elu- pressed in the Magna Charta,—"That cidate and sum up the evidence to the no man thall be taken or imprisoned, jury? And this being the case, what por- or deprived of any property, privilege, fible plea can be urged for the empoy- or franchile, but by the judgment of ment of counsel, and the enormous emo- “ his peers, or the law of the land."'luments which they, derive from the mi- Now, supposing (which however many fery and distrefs of their fellow.creatures? will not admit) that the words, law of

FOURTHLY. There ought to be one the land, form an exception to the trial law, one form of adminiftering justice, in by jury in certain ca'ts, this must, at all every nation. I believe mof people in events, necessarily refer to some tribunal Great Britain are agreed with respect to existing at the period when the Magna our ecclesiastical and other courts, where Charta was enacted (possibly to the trials the civil law is the criterion of justice. and appeals before the Houle of Lords). But there is another topic on which there Now, the Court of Chancery is a fungus is less harmony of opinion, only, I be- arising, God knows how ! out of the ar bilieve, because it is less understood, and trary power claimed by some of our an. that is what are called Courts of Equity. It cieni monarchs to interfere in the prois obvious, that to make any distinction cesses of the common law courts; and its between Equity and Law is a burlesque jurifdi&tion was certainly unheard of for upon the latter. But the truth is, in the centuries after the enacting of Magna matter in question, no such distinction ex- Charia. Can anything then be more ifts, except where the absurd relics of the absud, than, when the conftitution of feudal system interfere ; the basis of our Great Britain fays expressly,—" That law is, or 'ought to be, equity; and our no man shall be judged as to his person courts of equity are as much bound by or property, otherwise than by the precedent and absolute law as the other “ verdict of his peers or equals !”-to

It has been an erroneous opi- leave one-third of the property. (as to nion, that the courts of equity are intend- value) which is brought into litigation, ed to abate the rigour of the common law; at the arbitrary and discretionary authobut whoever will look into Judge Black. rity, of à: SINGLE JUDGE ! and (to ftone's third volume, will see that no luch heighten the absurdity) that Judge de. power is contended for, nor can possibly pendant and removeable at the pleasure be exerciled.

of the crown ! The only advantages which our courts - If the trial by jury is a privilege which of equity possess, may, in fact, be confined is worth contending for—if the mode of to two inftances : it. In certain cases it administering of justice in our common may be useful to examine the parties them- law courts is (as I really think) worthy selves in a suit upon cath, which cannot in most respects of admiration, how are be done in a court of common law; but we to account for the public solecism of the courts of equity are invested with this permitting this gross innovation on the authority. 2dly. A court of common conftirution-this entire neglect of those law admits only of oral evidence ; whereas palladiuins of British liberry—“ The in a court of equity, interrogatories ad- “ Trial by Jury, and the Law of the ministered to a witness residing in a fo.

" Land !” reign country, and his depositions taken, Such are my sentiments, in general, are competent evidence. Now could any on this important subject. It appears thing be more easy than to invest the plain to me, that a perfect and rational common law courts with a discretionary code of civil law must be fyftematical authority in these tivo infiances, and to and harmonious, not founded on jarring submit the mass of evidence thus collected principles, or inconsistent lystems of civil to the judginent of a jury"? Or can there policy. That it should be fimple and he any reason whatever for creating a dif- intelligible to the people, wh: se guide and tinct court, merely to supply these two direction, as to their civil conduct, it is defects in our national Jurisprudence ?

intended to be; that justice, in a well re. Not to speak of the expence, of the te. gulated state, should be administered gratis, diousness of the process, of the discrepancy or nearly fo; and that there should be of the forms from that excellent practice but one fyftem of law and justice to per: citabithet in our common law courts, I vade the realm. In speaking upon this



Vol. II.)

Æra of Christ's Nativity.


subject I have been obliged to take my we were too backward in our reckoning instances from our own laws, not because by almost two years. Sullyga, a Polander, I think them worse than our neighbours, supposed that the error amounted to full for I really believe them better than those four years; and there is another who of most other countries; but because I am would make it amount to five years. better acquainted with them, and because As Scaliger endeavoured to determine being better known in this country, the the time of Christ's nativity by the instances adduced will be less liable to courses of the priests; so may we likewise controversy.

endeavour to confirm the vulgar Christian I an far from wishing any harsh or æra by the full moon which happened violent alterations in the existing governo about the time of our Saviour's death, ment or constitution of this country. The . and the full moon which happened in the laws of England, as well as those of most year 1762. The data we must proceed countries, will one day or other call for a upon, are : revision, --but that revision could not be 1. The day on which that new moon effected amidst the confusion and calamity happened, which was either upon, or nearof a revolution in government.-It will est to the vernal equinox, and was the

(whenever it takes place) be the work of first day of the Jewith ecclefiaftical year, a patriot king, and of fome great, inde- consequently the full moon must at that pendent, and popular minister*. time have happened upon the 15th day

I have not the vanity to believe, that of the Jewith month Abib or Nisan. any thing I am able to produce could be 2. It is certain, that our Saviour fuf. conducive to so noble an end as the reform fered on the 14th day of the Jewish month of the principles of law, farther than in Nifan, which was then our Friday, and this one view,—that it may serve, in antivered partly to the second, and partly some measure, to attract the attention of to the third of April. See Usher's An. abler men, both in this country and in nals, and Echard's Ecclefiaftical History, others, to a subject which has hitherto Therefore, the greater part of the 15th of been too much neglected; that it may, Nisan answered to our third of April. perhaps, be followed by an anrpier invel- 3. The metonic, or lunar cycle, does tigation by persons more versed in legal: not confift precisely of nineteen


but Science, who, by the clash of sentiment, it precedes the Julian year by 1h. 27' 32". may elicite truth.

For in 19 Julian years days. hours. m. Seco of 3654.6h. there are 6939,

18 For the Montbly Magazine. And in 235 lunar months CALCULATIONS FOR ASCERTAINING

of 29. 12h. 44' 3" 6939 16 32 28 THE ÆRA OF CHRIST'S NATIVITY. æra, which we christians now


I 27 32 use, was first settled by Dionyfius Exiguus, a monk, in the reign of Juftinian, Uher and Echard, in the thirty-third

4. Our Lord suffered, according to the Roman emperor.---This is now commonly called the vulgar æra, and places

year the birth of Christ in the end of the

91 periods of 19 years (i. e. from 4947th year of the world. But the learned A. D. 33 to A. D. 1762) 1h. 27' 32" will Joseph Scaliger (who by an ingenious ar.

amount to 54. 12". 45' 32". gument, drawn from the courses of the

Now then, as we are very sure that priests, as settled by David, and the birth A. D. 33, the full moon happened on of John the Baptift, has placed the nati- some part of the 15th day of Nisan, fo we vity of Christ in the latter end of Septem may suppose that it happened about the ber, or the beginning of O&tober, accord

14th hour of that day; that is, allowing ing to the Old Style), was of opinion, that for the difference of longitude, it hap

pened on our April 3d, 6h. A. M. the * The necesity of a reform in the prac

Old Style. From that time subtract 54. tice of the courts of law in this country is so 12". 45' 32" and we shall come to March universally admitted, that it is confidently af- 28th, 17". 14' 28", 1762, Old Style ; that firmed that it was publicly and forcibly urged is April 8th, about five in the afternoon, lately from the bench, by one of the inofi re- N.S. Now, about that time, a full moon fpectable and independent judges that ever

did happen at London, and therefore our presided in the King's Bench.

present æra is the true one. SUP. to MONTHLY MAG. Vol. II. 6 F


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of his age.

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