In twelve years of peace we have seen the true principles of commerce analyzed, and brought into operation with so much vigor, that it is to be hoped they will not be overthrown, or again obscured. Impolitic taxation has been abolished or reduced, as far as the necessities of the state would allow. Industry, in almost every possible manner, has been released from trammels, and suffered to glide into its natural channel. By the more enlightened, strenuous exertions have been made to remove religious disabilities, in order that, by allaying that sectarian animosity, which divides one part of the empire from the other, the strength of the whole might be augmented. At a time when so many liberal objects have been accomplished, and others are fast approaching to their completion, how happens it that the law stands alone in "barbaric pride," as if it were superior to the reforming hand of time? Why is it that law proceedings are still overrun with unintelligible jargon, attended with expence which often amounts to a denial of justice, and involved in machinery which is productive only of uncertainty and delay; whilst all other abuses are yielding by degrees to the influence of enlightened opinion? When the difficulties and extent of the subject, and the adherence of the profession to precedent, are considered, we do not think that too much praise can be given to Mr. Miller for his important and most interesting work. It exhibits a comprehensive and fearless mind, applying to his task the most liberal and enlightened principles, superior to every influence of party, and guided solely by a view to the public good. He does not shrink from censuring individuals, when they appear to him to deserve it: but he generally prefers the more useful course, of bearing with all his ability against those systems, which interfere with the administration of justice. His attention is first directed to the chief courts of common law and equity, and to such particulars in each of these jurisdictions as appear to be most remarkable in their constitution, procedure, or doctrines. He next points out some important amendments of which the civil law of England appears to be susceptible; and, lastly, he adverts to the means by which the general improvement of the administration of justice may most effectually be facilitated. It is a remarkable circumstance, that England seems to be the only country, in antient or modern times, in which a com a complete separation has been effected between the courts of law and equity. This circumstance would of itself seem to imply a deviation, not for the better, from the general sense of mankind; and we see the results of it in the abuses which have grown up under the protection of our equitable jurisdiction. As if to remind us continually of the anomaly, we have a court of exchequer, which administers both law and equity; and though its decisions are not in high repute for their authority, yet it should be remembered that the Chancellor has the appointment of the Judges, and that by some accident it has happened, that the Chief Barons have seldom been raised to that rank for their experience in equitable proceedings. In this tribunal, as well as in those of the King's Bench and Common Pleas, the number of the Judges, and the distribution of their time, require revision. As these courts are at present constituted, there is always an arrear of business in each, but particularly in the King's Bench, where it has swelled to an enormous extent, and has required the length of the terms to have been greatly protracted of late years, by temporary acts. There seems to be no reason why such inadequate divisions of the year should not be done away with altogether. Allowing two months for vacation, a court, composed of three Judges, should sit through the whole of the remaining ten months, and devote their attention exclusively to such matters of law as are now heard in term-time. We have no hesitation in affirming that for the same number of months two Judges ought to sit, each in a separate chamber, for the purpose of disposing of the nisi prius business of the King's Bench. Is it generally known, that the printed lists of this court exhibit, at this moment, upwards of six hundred jury-causes set down for trial in Westminster and London, and that these, according to the present system, must be all gone through before a single Judge? It is scarcely necessary to advert to the anxiety, expence, and inconvenience caused to the just suitor by the delay which this multiplicity of business produces. The arrangement which we have suggested would of course require an increase in the number of the Judges; and to such an increase the country does not seem disposed to make any objection. Commissioners might be appointed to fill up the circuits. The number of Judges in equity ought also to be augmented, for the simple reason that equity-business accumulates. Why should not a Judge carry equity into the country, as law is Cc 4 carried carried now? Whether the system of written evidence be kept up, or whether parole evidence be admitted in Chancery proceedings, it does appear that by such an arrangement, a great deal of annoyance would be saved to the suitors. As Mr. Miller proposes, Judges ought to be selected from younger men than of late they have been. The same men would be more efficient during a long period of service, if appointed earlier in life. The world understands that it is not necessary to be as old as Methusalem in order to be as wise as Solomon. The abuses of pleadings, both in law and equity, have long been a fruitful source of complaint. Mr. Miller belongs to the Chancery bar, and of course he cannot be expected to possess the same knowlege of proceedings at law as he does of those in equity. Accordingly, his notice of this subject rather consists in citing the opinions of others, than in offering any thing of his own. We may state the proper object of special pleading to be the separation of fact from law: the practice of it is to increase expence, to produce delay, and to evade substantial justice through matters of form. "The only use I could ever conceive of pleading," says an author whom Mr. Miller quotes, "(besides the great gains they bring to the attornies, officers, and counsel,) is to reduce the matters in difference between the parties to a single question, and thereby give each of them notice of what is to be proved and defended at the trial; otherwise they might meet there as unequally matched as when a man challenges another, without naming the weapon, and then brings a pistol, and the other only a sword. But if either party be obliged to give reasonable notice in writing of any special matter intended to be given in evidence, or insisted on at the trial, I should think that method would make special pleading useless, and that the merits of the cause might by that method be as fairly and effectually tried as by the help of special pleading." We cannot but look at special pleading in the same light as this writer did. It appears to us that, by a few regulations framed in the spirit of this opinion, justice might be done much more speedily and effectually than by the present system. We would have the cause of complaint clearly stated by the plaintiff, with notice of any special matter to be given in evidence. The defendant should plead the general issue, and give a similar notice; or he should admit the fact, and deny the law. Precedents, as Mr. Miller suggests, for declaration and plea, or notice and answer, should be be prescribed by an act; and when excepted to for form, they should be at once amended by the court, as proposed in Shepherd's "England's Balme." Judgment should be given in a reasonable time after the law or fact is decided. * Mr. Miller dissects with great ability the present form of bills and answers in Chancery, and suggests several ameliorations in them. We wish that he had gone further, and devised some plan for getting rid of amended and re-amended bills, and the endless replications and rejoinders, which, under the present system, may be resorted to in order to postpone the decision of the cause. The necessity imposed on the suitors of employing the clerks of court in addition to their own solicitors, is so palpable an abuse, that we are astonished how the Chancellor can permit it to continue a single day. Proceeding to the second division of his subject, the amendments of which the civil law of England seems to be susceptible, Mr. Miller offers several arguments against the doctrine of attainder and corruption of blood; and against the indissolubility of allegiance, and of marriage, which are well worth attention, as are also his eloquent and sensible strictures on many of the rules of equity. We go along with him to the full length of his arguments upon these important subjects. The necessity of the registration of deeds is also forcibly pointed out. Our common-law Judges have, by the latitude of their constructions, almost rendered null and void some excellent provisions for this purpose already made by the legislature. In the concluding section of the work, which treats of the best means for improving the administration of justice, the A striking instance of the difference between common sense and the subtleties of pleading, occurred lately on the western circuit before Mr. Justice Littledale. A prisoner named John Williams was indicted for killing three sheep with intent to steal their carcases. The evidence was that only the fat of the sheep had been carried away by the prisoner, upon which the learned Judge observed, that there was a variance between the charge and the proof of it. The counsel for the prosecution admitted the variance, proposed to abandon the indictment, and to indict the prisoner anew. The Judge intimated that the prisoner in that case must escape, since he might plead to the second indictment that he had been acquitted on the first. The case went to the jury who found the prisoner guilty! The rules of pleading would therefore in this instance have frustrated the ends of public justice, if the common sense of the jury had not interposed to assist it. question question is considered, to how many, and what class, of persons, the duty of making the proposed improvements should be intrusted. Mr. Miller's objections to the commission now existing to, inquire into the practice of the Court of Chancery, and whether any, and what part, of the business, now subject to its jurisdiction, may be withdrawn from it, are well founded. Whatever the result may be, no plan is less likely to prove effective. In the first place, the commissioners are too numerous. The proper execution of a commission of this kind requires, that the attention and attendance of each commissioner should be uninterrupted. But to expect that sixteen or fourteen commissioners, each of whom has a variety of duties to fulfil, should regularly assemble together, is a most chimerical expectation. Half of them will be found to attend very rarely, or not at all; and of those that do, the one half will be found, either secretly or openly, to counteract the other. In the next place, it seems a mistake to couple judges and barristers together in such an enterprise. That a barrister should consult on equal terms, at three o'clock, with a Judge before whom he has been pleading at two, is almost impossible. There will be a feeling of inferiority on the one hand, and of superiority on the other, of which none of the parties are altogether able to divest themselves.' For The work is not, in general, remarkable for elegance of style. It wants compression, or, we should rather say, it has the positive faults of diffusiveness and loose arrangement, which mark the composition of lawyers in general. Mr. Miller's complaints are too much like those of a bill in Chancery; and this is a reason why, in our limits, we have been unable to do him justice by a sufficient number of extracts. On several points we think his opinions incorrect. instance, he objects to allowing advocates to address the jury for prisoners accused of capital offences under high treason, which we hold to be a monstrous anomaly in a country where an action for 57. is supported and defended by counsel. His reasons as to not allowing prisoners for debt the benefit of the rules, seem rather severe than just. His proposal to give Judges the power of depriving barristers' is dangerous, and strongly to be resisted. It would substitute servility for the present independence of the bar. If such a discretion had existed, does the author think that Mr. Brougham would not have been deprived at the Queen's trial? Mr. Miller exposes, with great felicity, the absurdities which have been recently introduced into the House of Lords, in its character as the court of ultimate appeal from |