people out of the immediate view and control of the courts of law. It is through the magistracy, more than through any other agency, except that of the tax-gatherer, that the people are brought directly into contact with the government of the country; and this is the exhibition of justice and consideration with which, when they approach it, they are treated. These magistrates, with no one circumstance to fit them for the discharge of legal duties, incur no responsibility, and are subject to no restriction. The judges of the land, chosen with the labors of a life previously devoted to the acquirement of competency, are responsible for every word and act, and subject to every species of restriction. They are selected. with the most anxious caution for every circumstance of high character and of profound knowlege; and yet they are incapable of pronouncing a single decision from which an appeal does not lie to some other tribunal immediately about them; while the county magistrates, taken from the community at hazard, subject to no responsibility, unless for conduct which it is next to impossible to prove, and incapable of being removed from their places, unless by a verdict establishing direct criminality against themfrom the decisions of these persons there is no appeal, unless for some informality in the letter of their proceedings, or on a case submitted by their own will, and with their own especial permission (for the thing can be accomplished under no other circumstances) to the Court of King's Bench. These are the circumstances to which, in the first division of my subject, I have desired to call the attention of the House. I have been anxious to accomplish my object more shortly, but have found it impossible to do so; and I must trust to the candor of the honorable members, in considering the importance of my statements, to pardon their prolixity.

I now propose to address myself to that portion of the subject which involves the discussion of the administration of justice in those courts of law in which I have been accustomed to practise. And although I regret having been compelled to trespass so long on the time of the House, yet I cannot, even now, promise a very early conclusion. And, first of all, addressing myself to the state of the common law, I would appeal to men of every profession, whether it would not be convenient, that whatever the law might be on any particular subject, it should be the same in all parts of the kingdom? Is it likely to be useful, or can it be necessary, that, by crossing a river, we should get to a place where the whole of a man's children equally inherit his estate? that, by going down a few miles to Brentford, we should reach a locality in which specific provision is made in favor of the youngest branch of a family? and that, by turning as many miles in

another direction, we should be in a county where the inheritance of real property belongs peculiarly to the eldest descendant? Is it fit that such a multitude of customs, so various and contradictory, most of them the remnants of a barbarous age, should be allowed to remain in a country subject to the same general government? To go through the many absurd instances of particular customs which might be cited, would be a greater trespass on the patience of the House than I am disposed to make, but some of them I will mention. In one manor, the property of the copyholder is allowed to pass by will; in another, that mode of conveyance is not admitted. I admit that an improvement in the law respecting copyholds has been introduced by an hon. friend -the greatest improvement, perhaps, which has been made within the last two years, but still there remain many absurd customs which are locally binding, but which ought to be abolished altogether. In some manors, the validity of wills bequeathing copyhold property is not admitted, if they have been made more than two or three years before the death of the testator; so that it is necessary for a party to renew his will every two or three years. Again, in some manors, the eldest daughter succeeds to the property in the same way as the eldest princess, in default of heirs male, succeeds to the crown of England; in others, the succession is by all the daughters equally. In one manor, the widow has her dower of one-third of the property; in others, she comes in for her free bench, and takes one-half; and, in some, she comes in to the prejudice of the male heir. In some there are fines or heriots; but, in all, the customs affecting the descent and transmission of property are as various as the droit de coutume in France, where, in almost every one of three hundred villages, the customs vary. Is it right, that such customs should be allowed to continue, or that they should be allowed to stand, in opposition to the general principles of the common law, affecting all other parts of the country? Is it right, that in London one law should be allowed to prevail for recovery of property, or for attachment of property, in the hands of third parties, different from that which is in force in all other parts of the kingdom? These various, inconsistent, and not seldom contradictory customs, with which very few could be acquainted, are so many traps for the unwary: they are a hindrance to the conveyance of property; often a material check to commerce, and an impediment to the free circulation of money. It is almost impossible for a man possessed of copyhold property to borrow money on it. As the law now stands, very few, if any, could be found to lend their money, on the security of such property. Copyhold property is not liable, after the death of the owner, even for his bond debts. Freehold property is, absurdly

enough, exempted from the payment of simple contract debts after the death of the owner; but copyhold is not liable for debts of any description, bond or simple contract: so that, in the hands of a man who wants to raise money, it is, however valuable in other respects, absolutely worthless. Is it, I would ask, too much to expect, that after a lapse of so many years, during which those absurd customs have been allowed to prevail, some remedy should at length be applied?

Having thus pointed out the absurdity of many local customs, I will now show that the law is not in its administration always the same to persons. I will show that it is not true, as asserted by some of our writers on the laws of the country, that the Crown and the subject come into Court on equal terms. The law says they are equal; but I will show that they are not, but that in a variety of important cases the subject comes into Court under serious disadvantages. Blackstone says that the king can no more seize the estate of a subject than the subject can that of the king; or, if the authority of the king be used in taking the property of a subject, the subject has his remedy by writ or petition of right, or by monstrans de droit; "for," says Blackstone," the decent presumption of law is, that as the Crown can do no wrong, it would, on hearing the case stated fully, give its decision according to justice." I wish the learned commentator had not left it to be shown that all this alleged equality is a mere matter of fiction. Now what I will show is, that all this alleged equality, and the protection supposed to be derived from the petition of right, exists only in the books in which they are mentioned, but undoubtedly not in the practice of the courts of law: for this very writ, or petition of right, cannot be used by the subject without the fiat of the Crown; and unless this were granted, all the other steps taken by the party aggrieved would be only so much labor lost. The granting or withholding of the fiat is in the breast of the Attorney-General; and if he should refuse it, the party has no remedy but to impeach the Attorney-General, and take all the chances of that very uncertain experiment. It might be said, that this was a matter which seldom happened; but why should it be left to the breast of any individual to refuse a writ of this kind? The power he exercises should in this case be merely ministerial, and the obtaining the fiat for the writ should be as much a matter of right as the obtaining any of the other processes sued out of our law courts. I will mention one case in illustration of my argument. A gentleman of my acquaintance obtained from the Crown the grant of an estate on the failure of heirs, but soon after the grant a claim was made on the part of another, who alleged that he was the rightful heir of the original grantee. A case was laid before me

and a learned friend in the Court of Chancery, and we were instructed to draw up a plea, and to apply for a writ of right. Application was accordingly made to the Attorney-General for his fiat in the usual way, but he refused it, and told the party that, as a sufficient number of years had not elapsed, he must proceed by ejectment. It was answered, that the claimant had chosen to proceed by the higher mode, and that the fiat ought to be given as a matter of course; but the answer was still the same, and the claimant was left to seek his remedy by ejectment. The consequence was, the suit of the claimant was not prosecuted, and I must say that the refusal was a great hardship to my client. I can state conscientiously, that the case of the claimant was as good a one as I ever saw. It was one of pedigree, and, in my opinion, the proofs offered were very strong. I do not mean to say that it was one which could not be answered; but such as it was-and this was the hardship I complain of-the claimant was not allowed an opportunity of trying it. After this, will it be contended, that the Crown and the subject come into Court on equal terms, or can it be doubted that there is anything but a mockery in the assertion of Blackstone on this subject?

There is another case, in which the Crown does not even pretend to be impartial, and I will mention a few of its effects. In the first place, a person who demurs to the law is obliged to admit the facts alleged against him, and cannot go back from that admission. With respect to the Crown, no restrictions of a similar kind are imposed; and I understand that, in the Court of Exchequer, a suitor cannot except to the answer of the Attorney-General to a bill, on the ground of its being insufficient, but any subject is liable to have such an exception taken to his answer. A case which I argued in the Court of King's Bench, and in which I was defeated, is another instance of the inequality of the situation of a subject with respect to the Crown in a court of justice. In that it appeared that, no matter where a cause of action arises, whether in Middlesex, or in York, or in Cornwall (as was the fact in the cause in question), the Attorney-General, on the part of the Crown, has the right to remove the case at once into the Court of King's Bench, and have it tried at bar before the four judges. Let the House consider what must be the inconvenience to parties to bring witnesses such a distance the loss in point of expense. This loss might, no doubt, be considered by the Crown, and some allowance made for it afterwards; but is it no inconvenience to have the cause removed from a place where the party is well known, and where his witnesses are known, to one in which he and they are strangers? This inconvenience cannot accrue to the Crown; for the Crown is just as well known in London as in Cornwall, and

not less likely to be served in the former place than the latter. Another instance of the inequality between the Crown and a subject at issue in a court of law is, that a subject must not withdraw the record where the Crown is a party, but the Crown can, at any stage of the proceedings, before the verdict is given. An instance of this occurred within my own knowlege, in the Court of Exchequer, where the Attorney-General allowed a case to go to the jury, and, while they were deliberating on their verdict in the jury-box, having some misgivings as to the probable nature of the verdict, he withdrew the record, and thus removed the case at once from the jurisdiction of the Court. Another circumstance may be mentioned in support of my argument: it is, that the Crown considers itself above receiving costs, and therefore also above paying them, when verdicts are against it. The reason of the principle may be very easily traced. It was established at a time when the Crown was very differently circumstanced with respect to the people, from what it is at present. It was at that period dependent chiefly on its own private revenues, wholly under its own control; and its interest in pecuniary matters might be said to be distinct from those of the people. Under those circumstances, it might be said, that it would be above receiving costs in an action with a subject; but why this should exempt it from the payment of costs when the verdict went against it, I am at a loss to discover, for the things are as different as possible. In special jury cases, the parties opposed to the Crown cannot pray a tales without the warrant of the AttorneyGeneral acting for the Crown.

Thus the power of denying a trial is vested in the very party whose interest it may be that no such trial should take place, and who very probably may be disposed to withhold the permission in proportion as the opposing party is anxious to obtain it. I will mention an instance of this which occurred in my own practice. An action was brought against an individual in the Court of Exchequer I was engaged for the defendant, and in the course of my cross-examination of the principal witness for the prosecution, I elicited from him sufficient to throw a suspicion of perjury. The jury, however, thought that some credit was due to his evidence, enough at least to incline the balance in favor of the Crown, and they accordingly found a verdict against the defendant. In the next case, the same witness was also the person on whose tes. timony the case of the Crown rested; but my learned friend, Mr. Sergeant Jones, to whose great talent, learning, and experience, I cannot pay too high a tribute, put him to the test of a severe crossexamination, in which he broke down. The superior skill of my learned friend, aided perhaps a little by his experience of the pre