those which he himself saw, but in others he is not quite so fortunate. Surely it could not have been Mr. Scarlett who gave him the following account of the Court of Chancery, in which the highest and most important object of that Court is wholly overlooked, and its general practice considerably misrepresented :--

A fourth Court is called the Court of Chancery, to which peculiarly belong the affairs of minors and bankrupts, and questions of injunction; but another object of its authority is, as a Court of Equity, to interfere in behalf of a debtor when two different actions are brought at once against him, without (the matter) having been particularly specified in the contract, as when a creditor having a mortgage on his (his debtor's) lands, and being able to sell the estate, should also proceed by arresting his body. It is also a part of the business of this Court to furnish creditors with the means of enforcing the literal execution of their contracts, which cannot be obtained in the ordinary law courts, as I have already shewn. Thus a creditor may proceed either at common law to recover damages for the non-execution of a contract, or in Chancery to force the contractor to deliver in kind the article contracted for; but the proceeding in this Court is so long, so difficult, and so confused, that persons very seldom bring their actions voluntarily into it. I had not time to penetrate all these obscurities, and I prefer holding my tongue on this subject to exposing myself to the chance of giving an erroneous account.'-p. 138.

This last consideration occurred to M. Cottu a little too lateHis whole view of the Court of Chancery is singularly narrow, and we may add erroneous. He seems not to have been aware, and it is strange that his legal friends should not have apprized him, that the highest and noblest jurisdiction of the court was the administration of what is called equity in opposition to strict law-the moderating the hardships which a literal construction of any laws must of necessity produce, and softening down, by the application of the rules of rational justice and discretion, a harshness and rigour which in particular cases would have operated too severely and unjustly.

This noblest function of our British law is, we believe, peculiar to it; indeed it has grown up amongst us by the modern increase of civilization, the diffusion of wealth, the multitude of contracts, and the infinite variety of transactions by which property is acquired or secured.

Other countries must of necessity have something of the same nature. It is impossible to lop or lengthen every case to the Procrustean bed of an unrelenting and invariable law. In most countries this moderative and equitable authority has been vested in the king and his council; and so it was formerly in England. But as the chancellor was always the first member of that council, in process of time, his weight and legal authority, and our old and rational dislike

dislike to vesting a discretionary power in the crown, or in any but responsible magistrates, produced by degrees the equitable jurisdiction of the chancellor, which is now become the most distinctive and valuable attribute of his high office.

As to the delays and intricacies of the practice, which M. Cottu lays to the peculiar charge of this court, we shall only say that the principles upon which it proceeds are less intricate, and its forms, on the whole, less tedious, than those of the other courts: the delays so often complained of exist, not in the construction of the court, or the nature of the law, but, in two principal and, we may call them, extraneous causes: the one is, the enormous mass of business which daily increases and accumulates on its head; and the other, that, whereas in the common law courts every thing is conducted by regular steps to a strict issue upon which a plain yes or no may be pronounced, it is of the essence of a Court of Equity to relieve parties from this very strictness, to hear mitigating and explanatory circumstances, and often to decide,-not yes or no, but that the parties are both right and both wrong, and to measure out between both their proportionate shares of justice. It is quite evident that such discussions as these, are, from their very nature, indeterminate, however plain the principles and forms of the court may be, and that parties, who rest their respective claims, not upon the strict and written laws but upon their own views of natural equity and indulgent justice, cannot be restrained within limits of proceeding so narrow as those courts who have only to inquire into facts, and not into motives or expediencies.

But the chief object of M. Cottu's research, and, to do him justice, that which he has accomplished the most satisfactorily, was a minute and progressive inquiry into the Jury System, from the first principle of the qualification of a grand juror down to the mode of delivering the verdict of the petty jury. Upon this part of his work, it is needless to enter into any details, they are new and interesting to France, but not so to us; but that which is indeed of great importance to her, and of no small interest to us, are the measures which ought, in M. Cottu's opinion, to result from this inquiry, and the modes in which he thinks these institutions should be naturalized in France.

The French had, in the beginning of their attempts at the jury system, two juries like us; their jury d'accusation answering in some respects to our grand jury. This part of the system was abolished in the formation of the present code of French laws, and M. Cottu, smit with the love of our grand juries, laments its loss, and would re-establish it, but with such modifications as would render it really.. a grand inquest like ours. We, however, candidly confess, that we do not see that this is within the scope of probability, and so

far,

far as criminal justice is concerned, we think, M. Cottu attaches too much importance to the share of the grand jury. Its func tions are now little more than a matter of course. In some few instances (as we have seen of late) the ignoring a bill makes a more early and more striking reparation to an unjustly accused individual; but even this occurs but seldom, and there are never wanting per sons to say that an acquittal before a special jury would be still more satisfactory. If indeed the grand jury were to decide, in the first stage of the proceedings, whether or no the prisoner should be committed for trial, and thus save the palpably innocent from the disgrace and duress of imprisonment, we should have concurred in M. Cottu's anxiety for its establishment; but as the practice stands, though we think it useful, we do not feel with M. Cottu that it is indispensable, or that it would be worth while to make any great sacrifices for its introduction into France. Caution in receiving accusations, and in committing offenders for trial-responsibility on the part of the committing magistrates-an early trialand a respectable and impartial composition of the petty jury, which is to pronounce on the prisoner's fate,-appear to us to be all that is necessary; and these objects, M. Cottu seems to admit, may be attained without forcing into the institutions of France a new element which it would be extremely difficult to organise. We are confident that if our grand juries had no other functions but their criminal duties, they would have long ago ceased to be composed as they are, and we doubt whether they would have even continued to exist.

But there is another consideration of much greater and more extensive importance which applies to the whole of this question, and which affects the magistracy of all ranks, and jurors and electors of all classes, and upon which M. Coitu dwells with becoming earnestness and with irresistible force-we mean the state of the law in France with respect to landed property, and the condition in which the gentry or landed proprietors of that country stand with regard to their capabilities of duly administering either the trial by jury or a representative constitution. Well may M. Cottu call the law of France, in this particular, monstrous and disastrous, which not only excludes all the rights of primogeniture, but stifles even the affections, the partialities of nature; loosens the bonds of paternal fondness and filial duty, and throws into a great lottery the distribution of all the property of the country. No property in France is now property of inheritance-no property in France depends in its future distribution on the will of its present possessor. The law has taken into its own hands the whole arrangement, and, without exception or discrimination, it divides, amongst all the brothers and all the sisters, equal portions of the wealth of their parents. No man, whether he has received his property by descent, or by gift,

VOL. XXII. NO. XLIII.

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or

or created it by purchase, or by industry, has any thing more than a life-interest in it, without the power even of sharing it amongst his children according to their conduct, their talents, their dispositions, or their professions;-all is done by the iron hand of the law, and the dearest ties of kindred and affection, and the most obvious considerations of propriety, and the most essential interests of families, are all rent and overthrown by this eternal, irremediable, division and subdivision of property. A country-gentleman has sons and daughters; his eldest son shows a fondness for agricultural employment and rural life; the second makes his way in the army, and is there provided for; a third, perhaps, called by religion, (for interest cannot now a-days direct the attention of a Frenchman that way,)embraces the clerical character;-the daughters are married→→→→ perhaps well married-perhaps married against their parents' consent, and to their shame and sorrow; yet there is no possibility by which the eldest son can become possessed of the paternal estate, nor even of a larger portion of it than his brothers and sisters-the whole must be equally divided, and the head of the family, if we can so call him, and the colonel, and the parson, and the sisters, whatever be their circumstances or conduct, receive their equal shares.

A citizen has by his industry and integrity raised himself a name in his neighbourhood, and his shop is favoured by public confidence; one son follows his father's steps and conducts his business; another, of a more roving disposition, goes to sea.-Well! the tradesman and the sailor become equally intitled to the paternal shop, and, as it cannot be divided, it must be sold, that its proceeds may be divided, and thus the name, character and business of the father are lost to his children. It seems surprising that so cold-hearted, so demoralizing a system should have ever been adopted; but its continued existence is a still greater enigma.

How can it be expected that any man will devote his time, his talents and his feelings to the improvement of an estate, the establishment of a commerce, the embellishment of a residence, which he knows after his death must be parcelled out and destroyed? How can a nation, M. Cottu asks, have a representative government without country-gentlemen, without substantial citizens? and how ean you have either under the operation of a law which disregards all conveniencies, dissipates all feelings, and scatters all property?

M. Cottu states that the general agriculture of France is adduced as a proof of the wisdom of this law; but he replies very properly that this may be, and probably is, owing to other causes; that agriculture is equally thriving in countries where it does not exist: but even if it were admitted that it had a tendency to cause the cultivation of every spot of land in the country (and it cannot be denied that for a time it will have somewhat of this effect) it must,

after

after a certain point, have a direct contrary one, and the eternal, subdivision of land will at last produce indifference, carelessness and waste. But neither this supposed advantage nor this eventual evil is to be placed in comparison with the higher evils which it is even now producing, and which every new descent increases. It annihilates what little remains of aristocracy in France, and puts a final bar to its re-establishment; and, as M. Cottu observes, what country ever could exist which did not possess that kind of aristocracy, within the ranks of which a citizen may hope, by his industry, his talents, his virtues, or his public services, permanently to place himself and his family? From what class are representatives, magistrates and jurors to be taken? What the effect of this extraordinary system may be hereafter on the nation at large it is not easy to determine; it will probably operate as an agrarian law, and no man or woman will be richer or poorer than another. How long society so circumstanced can exist is hitherto a matter of theory, for such a system never before in any effective degree prevailed in the civilized world. One exception to this levelling law has been lately made; the peers of France are allowed to create and entail properties to a certain amount on the inheritors of their titles-these are called majorats; but, as M. Cottu observes, (p. 242.) the effect of this law is too narrow to make a national aristocracy, and the limited amount required (about 1250l. per annum for a duke, 9004. for an earl, and 450/. for a viscount or baron*) will hardly secure the comforts, to say nothing of the splendour of life, to the peerage itself. Perhaps we may be blinded by our old prejudices and national predilections, but it really seems to us, as it does to M. Cottu, that no constitution can prosper under such a state of things; and we confidently trust, for the sake of that great country, whose happiness and prosperity sincerely interest us, that some degree of preference will be restored to primogeniture, and parents allowed some discretion in measuring to their children the portions which they may appear to need or to deserve.

We cannot pursue all M. Cottu's observations on this subject, nor enter into the reasoning by which he shews that the rights of property involve themselves with every part of the criminal and constitutional law. Suffice it to say, that he appeals to England as the happy country which holds a wise medium between a system of accumulating entails and one of eternal division; and he traces the greater part of our constitutional liberty and impartial justice to this source.

1

M. Cottu naturally mixes with his legal disquisitions some notices of our general manners and habits, in all of which he is liberal, and we should even say flattering; he at least does us no

Ordonnance of the 2d September, 1817. But ineffectual as this law was, it was altogether suspended in the cases of the sixty peers made in the beginning of this year.

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injustice,