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good witnesses in civil and not in criminal actions. What is the consequence of this absurdity? I was once employed, together with two learned gentlemen, to defend a man prosecuted for a misdemeanor. We required the affidavit of a respectable physician, which was prepared accordingly; and, when prepared, it put an end to the prosecution : he happened to be a Quaker, and could only affirm it, and would not swear it; so that it was of no use. This is bad every way, and as bad for innocence as for guilt, since the only saving witness in a criminal case may chance to be of that persuasion. I think that no one who believes in the existence of a God and a future state of rewards and punishments, should be excluded from giving his testimony in either kind of trial, the power of crediting the witness always being reserved to the jury: for I think the law too favorable to the character of a witness which allows nothing to prevail against his testimony, except the ignominy stamped on his character by sentence of law fully passed. I once assisted at a trial where there was a foul charge of rape, accompanied with manifest perjury. One witness was asked, « Were you not examined five times during one sessions of the peace on five different prosecutions, in which the five prisoners were all acquitted ?" Though the witness answered in the affirmative, it was not held enough to contradict him as a witness in pays, because it was not derived from a sentence of record.
I object to that jealousy of the law which shuts out explanatory evidence essential to the right understanding of a case, from the dread of having to try too many issues; and I complain of the rule by which evidence of documents is settled in the courts. Where there is an apparent, or what lawyers term a patent ambiguity, the Court decides without the assistance of the jury; but where the ambiguity is latent if the party mentioned, for instance, were John O’Noakes, and there happens to be two of the name in the same neighborhood, the Court retires, and the jury alone decides. This is founded on a high authority--no less a one than Lord Bacon. I dislike it notwithstanding, and endeavored, by appealing to the good sense of the Court in a particular case, to get rid of the distinction, but was overruled.
On the construction of wills, I think that some plain straight-forward rule ought to be enacted. Why should a different construction attend a gift of an estate for life by deed and by will ? These interpretations are of such uncertainty, that a man is generally as much in the dark as to the quality and extent of the estate devised, before as after his decease. I admire the adoption of words declaratory at once of the intention of the testator to give an estate for life, and no longer; and I would have the expressions interpreted by a rule equally plain, though it should have the effect of render
ing in a great measure useless, one of the most ingenious and perfect treatises written on any branch of law, namely, Mr. Fearne's book on Contingent Remainders. Why should the appointment of a debtor as executor be held in one case to be a release of his debt, in another not? In respect to real property, a man might have two wills of the same date, and destroy one because he knew that his friend had the duplicate. This would, in some instances, be held to be a vehement inference of the intention of revoking his will. Suppose a man, having made a will, to convey his estate but for one moment out of his own holding, the construction would be that he was in again of the old use, and the will would be void. Lord Erskine lost a considerable estate in Derbyshire by the testator suffering a recovery, to make his possession more secure. Lord Hardwicke judged, in a case where a man had declared that he had suffered a recovery, the better to confirm his will, that he was in of the old use, and the will was revoked. I complain also of the different treatment of wills in different courts. In the civil courts no evidence is admitted on them but in writing. In the common law, written evidence is excluded, and none but parole evidence admitted. I know a case where the ecclesiastical courts found a will to be invalid on evidence which was set aside on crossexamination orally before the common law for manifest conspiracy. The rule should be the same in every court; one rational, uniform, and consistent law should guide them all.
I next come to the statute of limitations, and complain of the law allowing so many stratagems for taking the case out of the statute. Lord Plunket once observed, with his usual strength of beauty and expression, that Time is armed with a scythe wherewith to destroy all things, but the legislature makes him move with healing on his wings to preserve all things by a statute of limitations. But lawyers have converted that which was intended for peace and quiet, into disquiet and perpetual uneasiness. So far have they carried their perversions, as to assert that there was no case which could not be taken out of the statute. ` Lord Erskine said, that when a man had a fishing witness sent to him to take a debt claimed of him out of the statute of limitations, his safest course was to knock the witness down, and be tried for the assault. I would prop up the statute of limitations by the statute of frauds; and nothing should take the case out of the former statute but an admission in writing.
In questions of real estate, where the seisin of the ancestor is pleaded, there must be proofs of 60 years' possession; where the party pleads his own possession, only 30 years ; but in a formedon, 20 years are enough. It is not less desirable than just to reduce all these to one period of limitation. The forms of proceeding in
these cases, which are wholly opposite to other cases, tend to grievous injustice. The demandant has to set out his title at length, leaving his adversary at liberty to lie in wait to pick holes in his pedigree, perhaps without possessing the slightest sense of justice as to his own possession. In ejectment, if a man has been out of possession but for a single day, he is immediately placed in that adverse position. In a writ of right at York assizes, the counsel for the demandant discovered a flaw in the title, and ob. tained leave to withdraw the record. At the next assizes it came down for trial, and they were surprised to find the defect in the title removed by a document obtained out of the Bishop's chancery, some weeks after the spring assizes, in which the tenant would have been defeated, had they gone to trial. There is no statute of limitations for the church, and I cannot see why there should not be one. I would not fix the period to 60 years. But I can assign no just reason for the existence of the nullum tempus law, by which those possessions are secured. A composition may have been made between a clergyman and his parishioners. It may have been paid for 200 years; and if at the end of that time the proofs. of the original agreement should be lost, as they are almost sure to be among farmers and persons who work in the fields, and the clergyman should claim the tithes, there is no bar by limitation. Indeed, there are cases in which the clergyman has thus retained the land given originally for the composition, and has the tithes paid him besides.
I would advise the appointment of sworn short-hand writers to take notes for the judges, that their attention may be given more to the points than to the facts, which, as the practice now stands, make no part of the record, except in stating them to the Court, in term, as reasons for granting a new trial. I think counsel ought to be allowed to comment on their own cases. They are obliged to open their cases generally, because experience has gradually taught them the danger of breaking down. They are left, too, by the present practice, in the difficulty of a compromise between the danger of calling witnesses for the defence, and leaving the case open to reply. The law should not allow this play of the counsel, but each party should be bound to put forward his whole case in pleading.
I next come to the execution of the law. As I would allow no hand to touch the defendant in action for debt, except on the intention of flight, and as I would allow no molestation of his property or affairs in the course of the proceedings, so I would admit of no let or hindrance in the fulfilment of justice after sentence pronounced. I would make all his property equally available to the payment of his debts.' That man must be inconsistent as a
reasoner, or of a very rickety state of mind, or else very unprincipled, who would, at this time of day, propose to uphold the dignity of the aristocracy, by converting any portion of them into fraudulent and dishonest debtors. I would also recommend some change in the award of certain actions (trover, detinue, and reple. vin), from money to specific performance, as is done always in Chancery, and in all judgments of common law made in banco.
The worst chapter of the law, as it now stands, is that between debtor and creditor ; and I am safe in saying that it is the worst known in Europe. A man may die in debt, by simple contract, for 10,000l., and the land which he may have purchased with that very money cannot be attached for the debt. Lord Mansfield, whose luminous mind was never undervalued, except by those who were either jealous of his fame, or ignorant of his value in the science of jurisprudence—whom no one ever attacked for a deficiency in his knowlege of the laws (with the exception of one great writer, whose style gave currency for a time to the assertion, though accompanied by an obvious want of legal knowlege in himself)—that great man noticed many of the discrepancies of the law with the eye of a philosopher who was not to be changed by the habits of the practitioner. Among the rest he observed, in a judgment on a case where the sheriff had seized money in a distraint, that the law did not allow a sheriff to seize money; " for this quaint reason, because money cannot be sold, and you are to take your debt out of the produce of a sale of the debtor's goods.” So that if a man were distrained for 50001. which might be all counted down and lying on the table, the sheriff cannot touch the money; and Lord Ellenborough.actually denounced the attempt, in a more recent case, as an innovation of the law, which required immediate correction. Formerly, it was the practice to adhere to the letter, contrary to the spirit of the law. I would, by changing the letter of the law, preserve its spirit. In times of old, a man's property solely consisted in his goods and chattels. Money was then but little used. There were no bills of exchange-no stocks -no funds. Land was then- unrepresented by money, or other transferable securities. The funds have since risen ; money has come into general use; credit has followed in the train of trade. Are we, then, still to retain the old law ? and shall it undergo no change when circumstances have arisen totally opposed to those under which it was enacted ? Sir, I defy the wit of man to prevent innovation. He who raises his voice against innovation, and says, « Don't change the law,” while he admits that the times and circumstances are totally changed, is himself the real innovator. It is in the nature of things that change must produce change. We behold a vessel sailing down a stream; a boat glides in its rear
« pursues its triumph, and partakes the gale.” As well might a man on the shore cry out, “Stop the boat, that it may not follow the ship;" as he who would raise an outcry against innovations, and endeavor to retain us in our position by opposing all improvement, We must accommodate the law to the circumstances of the times. The laws, and the circumstances which those laws are intended to meet, must be maintained in their relative position ; like the ship and the boat, they must float down the stream of time together. · Such is the great dispensation of Providence, and over it we can exercise no control. It would be a fatal maxim, indeed, that there should be no change in the law-no adaptation of it to the times in which we live. He who would support such a doctrine, would be himself the greatest and most violent innovator of all. I would have all a man's goods seized, to satisfy the demands of his creditors. I would have the person of the guilty debtor of the man who conceals goods, that he ought to give up-also seized. I would have the circumstances of such a man thoroughly sifted, and every particle of his property made available to the claims against him. But after seizing on all the goods of a debtor, I would not take up his person unless his conduct had been criminal, or quasicriminal unless he had been a rash adventurer, or a speculating swindler, who had existed on fraud, and obtained goods for which he never intended to pay. Such distinctions are frequently made in the Insolvent Courts. Imprisonment is there, in many cases, imposed as a satisfaction for the debt-not that the law considers such imprisonment as a means of contracting payment of the debts originally incurred, but it is inflicted as a punishment for the misconduct of the fraudulent debtor. If it were in the power of the Court to separate the question of property from that of the conduct of the individual, and to say, this debtor shall be imprisoned for three months, and that debtor for six months, awarding a punishment proportionate to the degree of criminality, as is done every day in the Insolvent Debtors' Court, then I would say that this branch of the law had attained to as much perfection as it is susceptible of, in the nature of things.
There are one or two remarks which I wish to make on the subject of appeals. They flow obviously from the former principles which I have laid down. I would endeavor to prevent vexatious litigation, by way of appeal, for the purpose of delay. I would not make it an object to individuals to obtain delay, by defending actions at great expense. I would have the party, in a case of appeal, give full and good security, and on this condition, that if the Court decided against him, his security should be forfeited, and handed over to the respondent. The right honorable gentleman opposite (Mr. Peel) has recognised the same principle