not require factitious precautions to prevent them. Were law taxes entirely suppressed, there are other obstacles, other checks, which operate in the same way, and which, unfortunately, have too much strength. The fear of failure, of loss of time, of personal inconvenience, of unavoidable expenses, restrains but too many individuals, and induces them to suffer, in preference to resorting to the law for redress. This is particularly true in relation to the poorest classes of society. Take those who live by their industry, talk to them of law suits and you frighten them; their ignorance increases the fear arising from the causes already indicated. They resign themselves to losses, they submit to injustice, rather than commence a suit against a man of wealth and influence. In addition to all these difficulties, which deter men from litigation, is it necessary to add taxes, to advance which is always burthensome, and frequently impracticable?

In speaking of frivolous causes, I ought not to forget an observation, which has only to be presented to be appreciated. I will suppose the object litigated as unimportant as you can well conceive-but after all, the plaintiff has a just suit to commence-and if he be to blame in claiming his due, is not he much more in the fault who refuses it? If the claim be just why is it not satisfied? If it be just, but frivolous, why contest it? If you accuse the plaintiff with being litigious, what will you say of the defendant? If taxation be a restraint on suits which are blameworthy, is it not an encouragement to defences still more blameworthy? No one then can think that taxes are proper to prevent suits. They tend to multiply unjust suits, those which specially ought to be prevented. In the hands of fraudulent litigants, they become the instruments of oppression and the means of

success.

If it were desirable to prevent mala fide suits, this offence must be treated like others, a distinction should be made be

tween the innocent and guilty, and the different degrees of fault should be marked, so that rashness should not be mistaken for malice; before punishment the offence should be clearly proved; and the expenses of the suit should not be payable till its conclusion. If one of the parties be altogether in fault, impose on him alone the whole expense of the suit. Proportion the expense to the different shades of blame; thus every man who has knowingly commenced or prosecuted an unjust suit will know, that besides the loss of his cause, he will be liable to a pecuniary fine, either by way of recompense to the party injured, or by way of a tax on every act which has tended to prolong the process.

Before closing this discussion, it is necessary to show more fully the causes which have procured for this species of taxation an approval so general, and an extension so considerable in some states. The two arguments adduced in their favor, the falsity of which has already been shown, have served less as a motive for their establishment than as a pretext for their justification.

One cause which has contributed to their general adoption is, that they have been confounded with other taxes, which, being raised by stamp and registry duties, have all the merit which taxes can ever have. Some bear only on objects of luxury, as in dice or cards, and which one pays or not at his option; others, which are imposed on contracts, though they are not strictly optional, yet at least no one is called to pay them, except at the time when he has the means of doing it. Stamp duties have this advantage, that they are difficult to be eluded. Nothing differs more widely in its results than taxation on law, and taxation on objects of luxury and on contracts. Mere superficial observers are deceived by a mere material resemblance. Stamp duties offer a good way of raising a revenue; taxes on judicial process are raised by means of stamp duties; therefore they are expedient, &c. &c. Another cause which has had much influ

ence in the adoption of this mode of raising a revenue is, the little resistance there is on the part of the public. A duty which bears on one class alone, that a determined, well defined class, as, for instance, on domestics, on horses or carriages, excites immediately the attention and the clamor of those who are interested. The minister of finance knows that the law will be discussed, and that he will have to contend with a public opinion more or less powerful. Taxes on law procedures are not liable to this inconvenience. Litigants do not form an united phalanx, they never make common cause, they ever have conflicting interests. These taxes fall on an individual only occasionally; they are not feared in advance; one foresees not the event of a suit; it comes unexpectedly, like a thunder storm; besides, every thing which relates to a suit and its expenses is enveloped in a thick cloud. There is, then, a ready acquiescence on the part of the public, the submission of ignorance and improvidence. The minister, who is never warned by the cries of the public, nor intimidated by a general resistance, gradually augments a tax which is raised so easily, and borne with so little murmuring. There may be among the richer classes a sort of instinct which induces them to favor these taxes. Their effect, we have seen, is to give the rich power over the poor; I include under the word poor all those to whom the cost would operate as a hindrance. It would be too much to say, that the rich prefer these taxes that they may be unjust with impunity; but it is the weakness of human nature to love power, which, one having is generous enough to wish not to abuse.

I am very much deceived, or it has been proved that taxes on law procedure are the worst of all possible taxes; that in many cases they amount to a denial of justice, and in more to a contribution levied on distress; that they impose the burdens not on those who receive the most, but on those who receive the least benefit from the tribunals of the law;

and that far from tending to diminish the number of suits, they offer a direct encouragement to all mala fide litigants.

J. A.

ART. IV. CODIFICATION AND REFORM OF THE LAW.

No. 6.

THE system of pleading. As a science the system of pleading is perfect, and forms a splendid monument of the acuteness and logical accuracy of the profession which established it. If the questions which require the application of its rules, were such as involved only the discussions of the learned, on merely abstract points, few alterations could be required, and none would be here suggested. But the law and all its rules are formed for the benefit and convenience of suitors in court, and if any evils or inconveniences are found to attend the existing system, it ought to be modified for their advantage.

A great objection then to the rules of pleading is, as we conceive, that they are too scientific. Originally almost all actions at the common law regarded real estate. Great precision was requisite in such actions, because of the artificial rules affecting real property. The cause of action was in general single in its nature, and admitted of great certainty and distinctness in the allegations, and the defence was not involved in complexity. If the pleadings therefore corresponded with the nature of the subject, they might be reduced to a system approaching to the certainty and precision of mathematical science. But the simplicity of ancient times has become changed. The transactions of life are more complicated. The causes of action are various, and the pleadings vary with the diversified circumstances of individual cases. The singleness, precision, and scientific certainty, which belonged to pleadings in real actions, seem inapplicable therefore to cases attended with this complexity

of character. The great object of the rules of pleading is the fair investigation of the subject matter of actions, and so far as they are found not to be adapted to this end, they require amendment. Substantial advantage ought never to be sacrificed to the symmetry of an artificial system.

Of the actions founded upon contract, the most important are debt and assumpsit. The grand distinction between them is, that the action of debt is the proper remedy for the breach of engagements founded upon specialties, whilst the action. of assumpsit is appropriated to promises of a lower grade. Notwithstanding the distinction which is preserved between these actions, it is apparent that they are founded on claims, which in character are not dissimilar. The difference is in the evidence adduced to support the actions. The action of debt is supported by a promise in writing, attended by the formality of a seal, except when it is a concurrent remedy with assumpsit, an action which is sustained by evidence of a simple promise. In the defences in assumpsit and debt, there is no reason for any distinction. A difference however exists, which seems to depend wholly on the forms of pleading. In the action of assumpsit, various equitable defences are admitted, which cannot be made in the action of debt. Assumpsit is in truth an equitable action. The plaintiff recovers only that to which, ex æquo et bono, he is entitled. Although the plea of the general issue is a denial of the promise, almost any defence is allowed, which shows that at the time of the bringing of the action, there was not justly an indebtedness. In the action of debt this latitude is not allowed. The inquiry relates to the original cause of action, and if this can be established, a recovery often is permitted, however inequitable the claim may be. There is no foundation for this other than what grows out of the rules of pleading, and the result is a perversion of justice. All defences to a claim, which are admissible in any form of action, show that the plaintiff is not in justice entitled to recover, and the