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Vol. II.]

Heads of an Effay on Civil Jurifprudence.

be distributed totally different from an
eftate in the funds, though both are effen-
tially alike as far as regards the mere
property.
Hence landed property
is

faid, in the language of the law, always to
defcend, while perfonal property is allow
ed to afcend. In other words, if a man,
poffeffed of a landed eftate, unfortunately
dies without a will, or if that will be not
formally executed, that eftate fhall go to
the 48th coufin, in preference to his father
or mother, though the miferable parents
may perifh in a work houfe. What but
the criminal indolence of a legislature,
added to the felfish views of the profeffors
of the law, could permit fuch a fyftem of
legal injuftice, fuch a contradiction to the
very fpirit of all laws, to difgrace for cen-
turies the code of an enlightened nation?
On the fame principle it is well known,
that if a perfon, fraudulently difpofed,.
only invefts his property in land, at his
death he completely wrongs his creditors
of all the debts which he had contract.
ed, perhaps entirely on the credit of that
fame landed property; as land by our law
is not chargeable with the juft debts of the
proprietor. Thofe who are converfant in
legal antiquities know the reafons upon
which thefe diftinctions w
were formerly
established; but no man can fhew the
falleft reason why they at prefent fhould
exift.

Thus alfo primogeniture is the ftanding principle of our law of defcents. But this is not only departed from with refpect to perfonal property; but fo abfurd is this relict of feudal barbarifin, and fo fatal in its confequences, that, contrary to the fyftem of those who established it, our legiflature has been obliged to fanction a continual violation of it in teftamentary difpofitions; and even in most cafes where the law unfortunately happens to be the diftributor of property, the event is lamented as a moft fatal accident, and is often atrended with the worft confequences; configning the younger branches of a family to dependance, beggary, and prostitution. I have heard but one argument, why the law fhould not adopt a better diftribution of the effects of inteftates; and that is, that it might prove injurious to the fyftem of hereditary nobility. This, however, I cannot account an argument of general cogency. In the cafe of nobility an exception might easily be established, and a certain portion of property might be always referved to accompany the title. I refpect the nobility of England, and feel no predilection for any levelling fyftem; but it cannot be right that the real in

947

tereft of nine millions of people should be facrificed to what is perhaps only the imaginary intereft of 3col.

The law of Efcheat is another of these cruel and unjuft principles, derived from the feudal fuperftition. That the offence of an individual, who is guilty of felony, fhould not only caufe the whole of his real property to revert to the lord, but should incapacitate the whole of his family, both upwards and downwards, for twenty generations, from the power of inheriting any landed property whatever, is fo fhocking an invation of all equity, of all humanity, that the legislature which fanctions the continuance of fuch a law for a fingle feffion must be unaccountably inattentive to their first duty, which is to establish as perfect a fyftem of jurifprudence as may be for the whole realm.

I cannot conclude thefe inftances of abfurdity, without noticing a decifion which but lately took place in a court of juftice; I do not exactly recollect where. A phyfician fued his patient for attendance upon him during a fit of fick nefs; but, to the aftonishment of all reasonable perfons, the court difcovered that a phyfician ftands upon a different footing from all other men, (I fay all, because the lawyers take care to be paid before hand) and that he has no right to demand any remuneration for his perfonal fervices. I think bonorarium was the barbarous phrafe by which the plaintiff was defrauded of his juft demand: bur, furely the faculty may fay with Falstaff, "I like not fuch grin "ning honour as Sir Walter Blunt hath." Reafon and confcience dictate that "every labourer is worthy of his hire;" and that fyftem of law is defective, which precludes any individual from the recovery of his right. Nay, the injury is even increafed, when this preclufion is founded upon Come obfolete principle, which affords a fhow, or more properly a mockery of justice, to the utter exclufion of the fubftance and reality.

The other evils which refult from a want of fyftem, principle, and theory in our laws, are innumerable. Hence that uncertainty, that chicane, that difficul ty, which is ruinous to the fuitors, and only profitable to the retainers of the courts of justice. Hence the volumes of contradictory precedents, which render it, in innumerable cafes, difficult to pronounce what is the law. Hence, as a fhrewd and farcaftic writer obferves, "our "laws are ftudied, not to be understood, "but to be difputed; not to give in"formation, but to breed confufion."

The

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The fact is (as was intimated before), one part of our laws is founded upon feudal, another on commercial principles; a code, to be practically good and ufeful, ought to be founded on the broad basis of general abstract justice. In the detail, it muft be adapted in fome measure to times and circumftances; but no part ought to be adapted to times which no longer have any connection with the habits or manners of fociety, or to circumftances which are long and defervedly obfolete.

The SECOND principle that I should infift upon in a code of laws should be plainnefs and fimplicity. What is ir tended for the government of all, fhould be clear and plain to all, otherwife men are expected to act according to maxims which they do not comprehend; and this is the greateft of folecifms. It is a very wretched piece of chicanery to fay, that the laws of any country may not be made fimple, plain, and intelligible. If any one fcience, if any one exertion of the human mind, admits of fimplicity and perfpicuity, it is this; the ftudy of nature is neceffarily involved in difficulty and obfcurity, because the views and defigns of Omnipotence must be always difficult to a finite being. The fcience of theology muft ever be, in some measure, obfcure, because it relates to the being and attributes of an infinite and all perfect existence. But law relates merely to the common affairs of life; its bafis is the fimpleft branch of ethics, that which regards the transfer of property, and the common duties of honefty and juftice. It is furprifing even how the laws of a country can be made difficult or obfcure. They can be only fo when local and obfolete prejudices are adopted for their bafis, and where a fund of ingenuity has for ages been employed to perplex and confound them, for felfish views and private purpofcs.

In almost every country of Europe, how involved, how difficult, and even uncertain is the law of defcents and inheritance. In our own country, volume after volume has been written on the fingle topic of contingent remainders; and yet the fubject remains in doubt and perplexity fill.

Nay, we have not in England, and I believe, in few countries on the continent,

fo much as a book to which we can refer

as a standard authority. Our laws are fcattered through nearly a thousand volumes, where the laborious profeffor has to collect them at an infinite expence of

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time, or to take them up upon the authority of private compilers, who had no fanction either from the legislature or the courts.

How inconfiftent is all this with the fin plicity of that never enough to be admired inftitution, the Trial by Jury; and how ineffectual muft fuch a complex and voluminous fyftem be to the direction and government of a people?

Not only in the laws themselves, but in all the forms of law, fimplicity ought to be studied. For instance, there is not a more verbose, intricate, or expensive procefs, than that of a common recovery :this, and levying of a fine, are called Fictions in law, and the fole object of them is, that when certain parties, who have a contingent or entailed right in an estate, agree, they may, in legal language, bar the entail or the dower; in other words, limit the difpofition of a teftator. Now, would it not fave much labour and expence, if the whole of this falfe and tedious procefs was fimplified; and fince it is now eftablished, that the agreement of certain parties fhall bar an entail, what more would be necessary than to fummon them before a court, and make them record their confent and agreement in the fimplest language, and in the fewest words that the cafe would admit of?

The language of the law ought also to be the fimpleft that could be adopted. In this country for inftance, whatever was formerly the intention or the use of fpecial pleadings, it is well known, that at prefent the mefne procefs has no influence in

*The very name of fiction should be avoided in the adminiftration of juftice, the very object of which is truth. Every thing that rejected. Criminal jurifprudence is not the tends to vitiate the moral principle thould be object of this paper, otherwise it would be proper to notice, that the oath of jurymen and witneffes is very frequently violated from a neceffary attention to mercy, in par. ticular cafes. I allude to the returning of a falfe valuation of an article ftolen in the indictment or verdict, left the culprit fhould be convicted of a capital offence. If we are to retain for ages the full feverity of our penal code, it would be much the furent and fafeft

way, by a new act of parliament, to enable jurymen, inftead of pronouncing "guilty to the value of," to pronounce at once "guilty of a capital, or of a clergyable felony:" ill having it underflood, that stealing to a certain amount was a capital offence, except in cafe of fome particular extenuating circumstances in the difcretion of the jury.

the

Vol. II.]

Heads of an Effay on Civil Jurifprudence.

the determination, and the pleadings are scarcely even referred to on the trial; and yet an error or mistake in the pleadings may prove an obftruction to the objects and purposes of fubftantial juftice; befides that, they ferve greatly to enhance the expence. Now, as this is the cafe, why fhould not the parties, upon every occafion, be directed to plead the general iffue, and leave the investigation of the cause, as it in fact now is, entirely to the court and jury which are to try it?

As my profeffed object is civil jurif. prudence, I forbear to notice the grofs abfurdity that a flaw in an indictment, an error in language, femetimes accidental, but, I am told, fometia es alfo intentional, in the clerk of the court, fhould completely obftruct and defeat the procefs of juftice in the profecution of an offender. THIRDLY. From a total difregard to thefe principles refults not only the uncertainty, but the intolerable expence, in obtaining justice. I think I may fay, in every part of Europe, and certainly among ourselves, Nulli vendemus juftitiam, is one of the facred maxims of our Magna Charta; but furely, without any violation of language, or of decency (and I wish to offend against neither), it may be faid, that wherever the expences of law fuits are fo enormous, that none but a very rich, or a very imprudent man, dares to engage in them, juftice is virtually bought and fold.

It is a bafe and trifling quibble of the Demetrius's of the law, that the great expences of law fuits ferve to counteract the Ipirit of litigation. Such reafoning reminds me of Muley Ifhmael's mode of preventing robberies, by extirpating the whole inhabitants of a country, men, women, and children, where a robbery was committed. Certainly, if the expences of law-fuits are fuch as to difable a poor man from feeking redrefs, and to deter every application to the courts of juf tice, except where the object is confiderable, the number of law-fuits, upon arithmetical principles, must be proportionably leffened. But in fuch a country, can it be faid, that juftice is fairly and impartially administered,? Let any penalties, which the legiflature fhall direct be laid upon the fuitor, who fhall commence a vexatious and malignant action, and let them be enforced at the difcretion of the court and jury; but let not the honeft plaintiff be deterred, by the fhameful expence of obtaining juftice, from bringing his wrongs before the bar of his country.

949

I might indeed turn the argument againft my opponents, and I might fay, that in a country where the expences of a law-fuit are fo enormous, as when protracted for any length of time, to beggar any man who is not very opulent, and where the taxed cofts, which are allowed, feldom amount to a third part of the actual expences, the ftrongest inducement is held forth to malicious perfons to commence a fuit upon frivolous pretexts.

I know many perfons, who would rather give up a fmall matter of property than rifk the expence and evils of a law. fuit, however unjuft the plea of the plaintiff; and I knew one melancholy inftance in a fifter kingdom, where, unhappily, there is rather more of a litigious fpirit than in this, in which an equity fuit (as it was called) was commenced and carried on precisely upon thefe diabolical principles, and ended in the ruin of the unfortunate defendant and his family.

This could not have been the cafe in

America, where, as Mr. Barlow ftates, the whole expences of a law-fuit amount to only ten fillings.

It is the expence of the law which creates the great grievance of our procefs and imprisonment for debt. The evil is not that a man, who has imprudently, and wickedly, perhaps, incurred a confiderable debt to an induftrious tradesman, fuffers the lofs of liberty; but that a poor man, who, in the full profpect of being able to pay, runs in debt to the amount of a few guineas, but by the unwarrantable expences of a law procefs, which he is unable to avert, is involved in costs to the amount of at least ten times that fum; is ruined and imprisoned, not by his own folly and injuftice, but by the folly and injuftice of the laws.

One chief caufe of this enormous expencé is the employment of advocates, or counfel; a body of men for which there could be no ufe if the laws were only fimplified and reduced to a fyftem. Indeed, I am much disposed to question their utility in any circumftances. As far as regards the examination of witneffes, the perfon who conducts the fuit ought to be fully adequate, and, even from his previous knowledge, more capable than a franger, As to oratory, it never can be effential to the investigation of truth; and if it has any effect upon a trial, that effect must be a bad one. If the truth is fairly displayed upon the face of the evidence (and it can come out no other way), furely there is no danger of an honeft jury judging other

wife than according to right. What effect then can eloquence poffibly have, but to warp or confound the judgment of the jury? And indeed, of what ufe is the judge, but to explain the law, and to elucidate and fum up the evidence to the jury? And this being the cafe, what posfible plea can be urged for the employment of counsel, and the enormous emoluments which they derive from the mifery and diftrefs of their fellow-creatures? FOURTHLY. There ought to be one laq, one form of adminiftering juftice, in every nation. I believe moft people in Great Britain are agreed with refpect to our ecclefiaftical and other courts, where the civil law is the criterion of juftice. But there is another topic on which there is lefs harmony of opinion, only, I believe, because it is lefs understood, and that is what are called Courts of Equity. It is obvious, that to make any diftinction between Equity and Law is a burlefque upon the latter. But the truth is, in the matter in question, no fuch diftinction exifts, except where the abfurd relics of the feudal fyftem interfere; the bafis of our law is, or ought to be, equity; and our courts of equity are as much bound by precedent and abfolute law as the other courts. It has been an erroneous opinion, that the courts of equity are intended to abate the rigour of the common law; but whoever will look into Judge Black ftone's third volume, will fee that no fuch power is contended for, nor can poffibly be exercited.

The only advantages which our courts. of equity poffefs, may, in fact, be confined to two inftances: Ift. In certain cafes it may be useful to examine the parties themfelves in a fuit upon cath, which cannot be done in a court of common law; but the courts of equity are invefted with this authority. 2dly. A court of common law admits only of oral evidence; whereas in a court of equity, interrogatories adminiftered to a witnefs refiding in a foreign country, and his depofitions taken, are competent evidence. Now could any thing be more eafy than to inveft the common law courts with a difcretionary authority in thefe two inftances, and to fubmit the mafs of evidence thus collected to the judgment of a jury? Or can there be any reafon whatever for creating a diftinct court, merely to fupply thefe two defects in our national Jurisprudence?

Not to fpeak of the expence, of the te. diou nefs of the procefs, of the difcrepancy of the forms from that excellent practice eftablished in our common law courts, I

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cannot help confidering the prefent courts of equity as an actual violation of the British conftitution. It is the vital principle of that conftitution, decidedly expreffed in the Magna Charta,-" That no man thall be taken or imprisoned, "or deprived of any property, privilege, or franchife, but by the judgment of "his peers, or the law of the land."Now, fuppofing (which however many will not admit) that the words, law of the land, form an exception to the trial by jury in certain cafes, this muft, at all events, neceffarily refer to fome tribunal exifting at the period when the Magna Charta was enacted (poffibly to the trials and appeals before the Houle of Lords). Now, the Court of Chancery is a fungus arifing, God knows how! out of the arbitrary power claimed by fome of our ancient monarchs to interfere in the proceffes of the common law courts; and its jurifdiétion was certainly unheard of for centuries after the enacting of Magna Charta. Can any thing then be more abfurd, than, when the conftitution of Great Britain fays exprefsly," That no man fhall be judged as to his perfon or property, otherwife than by the "verdict of his peers or equals !"-to leave one-third of the property (as to value) which is brought into litigation, at the arbitrary and difcretionary authority of a SINGLE JUDGE ! and (to heighten the abfurdity) that Judge dependant and removeable at the pleasure of the crown!

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If the trial by jury is a privilege which worth contending for if the mode of adminiftering of juftice in our common law courts is (as I really think) worthy in moft refpects of admiration, how are we to account for the public folecism of permitting this grofs innovation on the conftitution this entire neglect of thofe palladiums of British liberty-" The Trial by Jury, and the Law of the "Land!"

Such are my fentiments, in general, on this important fubject. It appears plain to me, that a perfect and rational code of civil law must be fyftematical and harmonious, not founded on jarring principles, or inconfiftent fyftems of civil policy. That it fhould be fimple and intelligible to the people, who fe guide and direction, as to their civil conduct, it is intended to be; that juftice, in a well re. gulated ftate,fhould be adminiftered gratis, or nearly fo; and that there fhould be but one fyftem of law and juftice to pervade the realm. In fpeaking upon this

fubject

Vol. II.]

Era of Chrift's Nativity.

fubject I have been obliged to take my inftances from our own laws, not becaufe I think them worse than our neighbours, for I really believe them better than thofe of moft other countries; but because I am better acquainted with them, and because being better known in this country, the inftances adduced will be lefs liable to controversy.

I am far from wishing any harsh or violent alterations in the exifting government or conftitution of this country. The laws of England, as well as thofe of moft countries, will one day or other call for a revifion, but that revifion could not be effected amidst the confufion and calamity of a revolution in government. It will (whenever it takes place) be the work of a patriot king, and of fome great, independent, and popular minister*.

I have not the vanity to believe, that any thing I am able to produce could be conducive to fo noble an end as the reform of the principles of law, farther than in this one view, that it may ferve, in fome measure, to attract the attention of abler men, both in this country and in others, to a fubject which has hitherto been too much neglected; that it may, perhaps, be followed by an anrpler, inveltigation by perfons more verfed in legal fcience, who, by the clash of sentiment, may elicite truth.

For the Monthly Magazine. CALCULATIONS FOR ASCERTAINING THE ERA OF CHRIST'S NATIVITY.

THE æra, which we chriftians now

use, was first settled by Dionyfius Exiguus, a monk, in the reign of Juftinian, the Roman emperor.-This is now commonly called the vulgar era, and places the birth of Chrift in the end of the 4947th year of the world. But the learned Jofeph Scaliger (who by an ingenious argument, drawn from the courses of the priefts, as fettled by David, and the birth of John the Baptift, has placed the nativity of Chrift in the latter end of Septem. ber, or the beginning of October, according to the Old Style), was of opinion, that

*The neceffity of a reform in the practice of the courts of law in this country is fo univerfally admitted, that it is confidently affirmed that it was publicly and forcibly urged lately from the bench, by one of the most refpećtable and independent judges that ever prefided in the King's Bench.

SUP. to MONTHLY MAG. Vol. II.

951

we were too backward in our reckoning by almoft two years. Suflyga, a Polander, fuppofed that the error amounted to full four years; and there is another who would make it amount to five years.

As Scaliger endeavoured to determine the time of Chrift's nativity by the courfes of the priests; fo may we likewise endeavour to confirm the vulgar Christian æra by the full moon which happened about the time of our Saviour's death, and the full moon which happened in the year 1762. The data we must proceed upon, are:

1. The day on which that new moon happened, which was either upon, or neareft to the vernal equinox, and was the first day of the Jewish ecclefiaftical year, confequently the full moon must at that time have happened upon the 15th day of the Jewish month Abib or Nifan.

2. It is certain, that our Saviour fuffered on the 14th day of the Jewish month Nifan, which was then our Friday, and anfwered partly to the fecond, and partly to the third of April. See Ufher's Annals, and Echard's Ecclefiaftical Hiftory. Therefore, the greater part of the 15th of Nifan answered to our third of April.

3. The metonic, or lunar cycle, does not confift precifely of nineteen years, but it precedes the Julian year by 1h. 27′32′′. For in 19 Julian years days. hours. m. Seco of 365. 6. there are 6939, 18 O O And in 235 lunar months of 29". 12h. 44′ 3′′

Difference

6939 16 32 28

I 27 32

Usher and Echard, in the thirty-third 4. Our Lord fuffered, according to year of his age.

5. In 91 periods of 19 years (i. e. from A. D. 33 to A. D. 1762) 1a. 27′ 32′′ will amount to 5. 12h. 45′ 32′′.

Now then, as we are very fure that A. D. 33, the full moon happened on fome part of the 15th day of Nifan, fo we may fuppofe that it happened about the 14th hour of that day; that is, allowing pened on our April 3d, 6h. A. M. the for the difference of longitude, it hapOld Style. From that time fubtract 54. 12h. 45′ 32" and we shall come to March 28th, 17h. 14′ 28", 1762, Old Style; that is April 8th, about five in the afternoon, N. S. Now, about that time, a full moon did happen at London, and therefore our prefent æra is the true one.

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