the pleas of the crown, as they were termed, involving | being in the marshal's custody the defendant is not at all offences; and being the highest judicial officer in liberty to dispute.' point of rank, his court was appointed to have cognisance over the two others. The matters connected with the exchequers-namely, the regulation of the royal domains, the collection of duties and other taxes -were committed to judges called Barons, presided over by a Chief-Baron. All questions about the possession of land, and other litigations between one citizen and another regarding matters of property, were called common pleas,' and were committed to certain jus-assizes in the various county towns-in some of them tices, presided over by a chief-justice.

These mischievous fictions were not abolished until the year 1832, when, by act of parliament, a uniform process was established in the three common law courts. An appeal lies from the decision of any one of these courts to the judges of the other two, who, when met to decide on such appeals, constitute a court called the Exchequer Chamber. Fourteen of the fifteen judges who form these common law courts hold the

The King's or Queen's Bench is thus the chief criminal court, and the Exchequer is the principal tribunal for revenue matters; but these courts are by no means restricted to the departments to which they are so assigned-they possess, concurrently with the common pleas, a jurisdiction in all ordinary questions of common law. The manner in which they obtained this power is one of the most extraordinary circumstances in the history of the laws of any country. The instruments made use of were, as has been hinted, the fictions, described as a peculiarity of the English law. To get at the real motives which were at work, it is necessary to recollect that formerly not only the judges, but all the officials connected with the several courts, were paid by fees, the amount of which depended on the extent of business transacted. They were thus like so many tradesmen keeping shops for the sale of justice, each anxious to keep a large supply of whatever was most wanted, and to serve the public on the most tempting terms. In this manner the courts of law undersold the courts of equity by not demanding any sanction, such as an oath, for the truth of what litigants declared in their pleadings. An arduous run for business was carried on between the three common law courts, the accounts of which, as given in the legal histories and law-books, are infinitely grotesque. The extent to which a court could carry its jurisdiction by these means, depended less upon reason than upon the muscular power of those officers of the court who enforced its decrees. The Exchequer, when it attempted to levy taxes, was told occasionally that the person charged with them could not pay, by reason that his debtors had not paid what they owed him; while he hinted that if the Exchequer wished his money, they had better assist him in recovering it. On this, it became the practice of the Ex-jointly interested, it professes to follow, not the special chequer to assist those who were in debt to the crown to get payment of the money due to them. It occurred to some ingenious lawyers, employed to recover debts, that if they stated to the Court of Exchequer that certain clients were debtors of the crown, and could not pay by reason of their own debtors not satisfying their demands, the court would make very little inquiry into the truth of the statement, but would adjudicate in the case, and levy the money forthwith. The court made so little inquiry as to the truth of the case, that it would not allow the statement to be contradicted, however inaccurate it might be; and down to the year 1832, when one brought an action in the Court of Exchequer, it was a matter of form that he should say he was a debtor to the king, and that he could not pay his debt, unless an obligation, incurred in his favour by the defendant, were fulfilled. The jurisdiction of the King's Bench was limited to cases that were either purely criminal, or had some connection with offences. When any one, however, happened to be in the prison of the King's Bench for an offence, there was no means of getting at him but through that court; and so the plan was devised of stating that a man was in the King's Bench prison when he was not. And in process of time,' says Blackstone, it [the Court of King's Bench] began, by a fiction, to hold plea of all personal actions whatsoever, and has continued to do so for ages: it being surmised that the defendant is arrested for a supposed trespass, which he never has, in reality, committed; and being thus in custody of the marshal of the court, the plaintiff is at liberty to proceed against him for any other personal injury, which surmise of

twice, and in others thrice a year. Here they act both as civil and criminal judges. Offences committed in London and its vicinity are tried by a tribunal lately created, called the Central Criminal Court.

The origin of the authority of equity tribunals has been already considered. The principal establishment of this description in England is that of the Chancery. It has in it three distinct courts, and three judges-the chancellor, the vice-chancellor, and the master of the rolls. Formerly, all proceedings in bankruptcy centered with the lord chancellor, but the increasing importance of this class of business rendered it necessary to appropriate a separate court to the purpose. This was accomplished in 1832 by Lord Brougham's act. The term Bankruptcy is in England confined entirely to persons engaged in commerce; and the jurisdiction of the court is so limited. Previous to its formation, however, it had been found expedient to create a court for the relief of insolvent debtors who might not be engaged in trade, on their giving up their property to their creditors. By a late act for restricting imprisonment for debt, the practice of relieving insolvent debtors was improved, nearly on the model of the Scottish system of cessio, and a bankruptcy code was applied to debtors who might not be tradesmen. The utility and importance of the Insolvent Debtors' Court were thus materially enlarged. Another court was lately brought into existence, called the Judicial Committee of the Privy Council. It consists almost entirely of the judges of the other courts. Its principal jurisdiction is in appeals from the colonial courts, and the Court of Admiralty. This Court of Admiralty has jurisdiction in maritime contracts, and crimes committed on the high seas. Having to deal with matters in which the inhabitants of this and of other countries are law of England, but the general commercial law of modern Europe, founded on the Roman law. In time of war, the court receives a commission to adjudicate regarding prizes taken from enemies, or from neutrals committing breaches of neutrality.

Besides the tribunals mentioned, there are ecclesiastical courts in the two archiepiscopal provinces of Canterbury and York. In the former there are the Court of Arches, the Prerogative or Testamentary Court, and the Court of Peculiars; in the latter the Prerogative Court and the Chancery Court. There are also many inferior ecclesiastical courts. The chief jurisdiction exercised by these tribunals, besides questions of ecclesiastical discipline, is in matters relating to succession to moveable goods. If we were to complete the list of English tribunals, it would be necessary to include the justices of peace, who, besides many special powers in revenue and other matters conferred by act of parliament, sit, at the general and quarter-sessions, as judges in minor offences. In addition to all these, there are various courts, of greater or lesser jurisdiction, connected with cities and boroughs; and in some places establishments called Courts of Requests, for adjudicating in cases of petty debts.

Having thus detailed the legal system of England, it is unnecessary to describe that of Ireland, which is almost in all respects a model of it.

English Legal Usages.

The legal usages of England, though sanctioned by inveterate custom, are generally clumsy, expensive, and to all but lawyers, unsatisfactory. The very

education of lawyers at the inns of court in Lon-unconstitutional seizure and incarceration by an action don, where they are supposed to receive instruc- of habeas corpus; that is, an action before a competent tion, and pursue certain studies, is a burlesque. court to be released, or have the custody of his own The whole machinery of executing writs, or orders person. In periods of civil commotion, the habeas of court, is equally objectionable. Imprisonment of corpus, as it is called, or power of replevin, is occasionthe person for the sake of safe custody is the ordi- ally suspended by an act of the legislature; by which nary means of enforcing claims in the civil law, and means the state can imprison without challenge, and of punishing in criminal cases. The largest jail for dismiss without trial. As may be supposed, this serious the reception of debtors is the Queen's Bench prison, infringement of the constitution is resorted to only in situated in Southwark. From the marshal or governor extreme cases. of this prison, however, a rule, or permission, may be obtained on payment, for liberty to go out of the prison for a day, or to reside within certain exterior bounds. In other words, a debtor possessing the means (abstracted from his creditors) may, while nominally in prison, be living at his ease and in the enjoyment of the general society of the neighbourhood.

Trial by Jury is a remarkable legal usage, which, in reference to criminal accusation, is of great antiquity, having its foundation in certain Anglo-Saxon forms favourable to individual liberty. It is alluded to in Magna Charta, wherein it is provided that all persons accused of crimes shall be tried by the judgment of their peers according to the laws of the realm. A jury is therefore presumed to consist of persons in a rank as nearly as possible analagous to that of the party charged with an offence. Practically, it is composed of individuals miscellaneous in rank, so as to insure impartiality in decision. In England, the jury may be said to be of two species, the grand and the petty jury. The grand jury consists of twenty-four persons summoned by the sheriff, to attend the court and present all offences committed within the county; that is, determine whether the cases of criminal accusation shall go before the petty jury. The jury so called examine witnesses on oath, and receive other evidence; if satisfied that there are grounds for trial, they find a true bill, as it is called, and the trial proceeds. The object of this institution is to prevent the oppression or damage of innocent persons; but in practice it is so clumsy as a method of investigation and deliberation, and so liable to error from the vast quantity of business to be hurried through, not to speak of being so burdensome to the lieges, that it would long since have been abolished, but for the rooted prejudices of the English in favour of old usages, however absurd and valueless. The time seems to have arrived when it will require to be superseded by the more efficient institution of a responsible public prosecutor.

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The petty jury for the trial of those against whom true bill is found, consists of twelve men, drawn by lot from a larger number summoned. This jury is the sole judge of the fact or facts charged, and its decisions require to be unanimous. In many instances a jury cannot conscientiously arrive at an unanimous conviction, in which case either one or more must yield to the majority; or the whole, after experiencing the pangs of hunger for one or two days, require to be discharged, when a new trial must ensue.

Trial by jury is usually considered to be the paladium of our rights and liberties; but this favourable view of its character evidently needs modification. It is principally useful as a safeguard against vindictive attempts at oppression on the part of the crown or other powerful accusers; yet even in this respect it has on various occasions proved faulty. If, however, it really shelters the subject, it can scarcely be said to be capable in all circumstances of protecting the crown. In Ireland, for example, where the English forms of grand and petty jury have been introduced, it is observable that there is scarcely a possibility of procuring a conviction where the state is the complaining and injured party, although the facts charged be proved beyond the possibility of cavil. Thus trial by jury can command respect only where there is a deep sense of rectitude, and a disregard of public clamour.

Habeas Corpus.-Only the law, not the sovereign or any functionary of government, can imprison the person of a subject, who can reclaim against wrongful or

LAW OF SCOTLAND.

From what has been already said, it will be gathered that the law of Scotland was chiefly composed of the feudal system and the Roman law. The former was in practice according to the form in which it had adapted itself to the peculiar customs of the country, the latter was taken from the doctrines of the civilians. The origin and progress of feudalism in Scotland are very obscure. The chroniclers attribute the foundation of the system to Malcolm II., in the eleventh century, but with little probability. It is more likely that, with the resort of foreigners, Saxon and Norman, to the court of the Scottish king subsequently to the conquest of England, the system was imperceptibly and gradually introduced. The monarchs, who were ambitious of presiding over a distinguished court, gave particular encouragement to the Normans, to whom they granted large fiefs or lordships; and it was natural that they should return the same homage to which they were accustomed in the country of their origin. The whole of the Lowlands, indeed, and a great part of the Highlands, became nearly as thickly adorned with Norman aristocratic names as the broad plains of England; and it was this alien aristocracy that submitted with so much indifference to the claims and encroachments of Edward I. There appear to have been many points on which the earlier laws of the two divisions of the island were identical. In England, however, as we have already seen, the feudal system received many checks, while in Scotland it was allowed to grow rank; and the deference paid to the civil law in the north served to widen the distinction. The alliance and continued intercourse with France, moreover, naturally drew the legal practice in the direction of the example set by that country.

There is little information to be derived concerning the practice of the law in Scotland previous to the sixteenth century. Edward I. probably destroyed some vestiges, through which its history might have been traced; but he seems to have been charged by some antiquaries with the destruction of more than ever existed. He did more, probably, by fabrication than by destruction to poison the sources of Scottish jurisprudence. The earliest alleged collection of the laws, commonly called the Regiam Majestatem, bears so near a resemblance to the English work of Glanvil, noticed above, that it is naturally supposed to have been a digest, not of what the laws were, but of what the conqueror wished them to be. The earliest Scottish legal writer whose works are quoted is Balfour, who prepared about the latter end of the sixteenth century, a compendium, chiefly derived from the Regiam Majestatem, the acts of parliament, and the decisions of the court. In the reign of James VI., a commission was appointed to make inquiry into the laws, of which the celebrated Sir John Skene was a member. The commissioners collected and published many acts of parliament, the Regiam Majestatem and other consuetudinary laws, such as the customs of the royal burghs; and Sir John Skene wrote an interesting treatise on the meaning of technical legal expressions.

The first really scientific writer on the law of Scotland, however, was Sir Thomas Craig, whose book on the feudal law was published in 1655. It is a work of great learning and thought, in which the reader is somewhat surprised to find that, though the work professes to be a Scottish law-book, it should derive so much of its learning from the practice of continental

committing an illegal act, may bring, to have the law as to the point declared, and his course of action made plain; another is called a 'multiplepoinding,' which may be raised by a man having money in his hands which more than one person is claiming, that he may know to whom he can legally pay it. Trial by jury was not, until very lately, added to the jurisdiction of this court. It is limited to certain descriptions of cases, and is far from popular.

nations. The next great authority is Lord Stair, the equivocal statesman of the reign of James VII., whose Institute, on the model of that of Justinian, is remarkable for the breadth of its legal principles, and the acuteness with which they are practically applied. Soon after the middle of the eighteenth century, a second Institute was prepared by Mr Erskine, professor of Scottish law, more suited to the knowledge of the age than that of Stair, but more dry and formal. Sir Walter Scott has justly denominated Erskine's Institute the The judges in the Court of Session, the advocates or Scottish Coke upon Lyttleton.' There were formerly barristers, the writers to the signet or practising attorfew opportunities of acquiring a legal education in Scot-neys, and other functionaries, form an institution styled land, and it was the practice for the youth studying the the College of Justice. Scottish law to repair to one of the continental univer- The principal criminal court is the Court of Justiciary, sities, among which Leyden and Paris were preferred. consisting of seven of the judges of the Court of Session, On the occasion of the appointment to a chair of law who sit in Edinburgh, and commission some of their in Aberdeen, in the seventeenth century, Spalding the number to hold circuits in the country. The most Chronicler says, it was strange to see ane man ad- remarkable peculiarity in Scottish legal usages, is the mitted to teach the lawes, who was never out of the practice of criminal prosecution, which is clear, simple, countrie studieing and learning the lawes;' thus ex- and effective. All crimes of a high class are prosepressing his astonishment that any man could be pre-cuted at the instance of the Lord Advocate, or chief sumed to become acquainted with a system of law on public prosecutor, at the expense of the country. the spot where it is administered. The civil law is still Lesser crimes are prosecuted by Procurators Fiscal, of professedly studied in Scotland, but its ancient influence whom one is attached to each sheriffdom. In no case is has sunk beneath the progress of commerce, and the the party injured put to any trouble or expense. The increase of statutory regulations, which compel the Lord Advocate, who is appointed by the crown, along lawyer to spend much of his time with acts of parlia- with crown-counsel, alone judge of the propriety of proment and reports of decisions. secuting for crimes, there being no grand jury. The jury before whom cases for trial are brought consists of fifteen persons selected by lot from forty-five summoned jurors, and the decision or verdict is by a majority. The Scotlong usage. There are many offences which, by this latter portion of the law, are punishable with death, if the prosecutor do not restrict the extent of punishment to be awarded, which he now does in almost every case except murder. The sheriffs, or local judges of counties, have important judicial powers, both civil and criminal. The former extends to every description of dispute regarding property, except what refers to land. The powers of these judges have lately received extensive additions, especially in matters of insolvency and bankruptcy. They do not employ a jury, except in criminal cases, in which their power of inflicting punishment does not exceed imprisonment. The sheriff's of the Scottish counties are advocates, practising before the supreme courts, not honorary functionaries, as in England. In each county there is, besides, a resident sheriff, or sheriff-substitute, who issues warrants and holds civil and criminal courts. To this useful class of functionaries Scotland is much indebted.

Scotland has a considerable quantity of early statute law, but not nearly so much as England. Down to the time of the Revolution, the general principles only of the acts had the assent of the assembled parliament-tish criminal law is partly statute, partly founded on the details were all prepared by a committee called the Lords of the Articles. The older acts are remarkable for their brevity and precision, in which respects they greatly excel the clumsy and wordy acts of parliament of the United Kingdom, which, since the Union, has legislated for Scotland, often with little regard to the peculiarities of Scottish practice. According to a usage derived from the civil law, acts of parliament become repealed by disuse in Scotland, technically, get into desuetude-a principle unknown in English law.

The earliest superior tribunals in Scotland, were either the parliament, as the king's great council, or a committee of it, acting with the delegated powers of the whole body. There was likewise, as in England, a king's justiciar, whose authority was vast, and not very well defined, especially in criminal matters. Committees of parliament were, in the fifteenth and the beginning of the sixteenth century, sometimes formed into regular courts of justice, in which, however, a certain degree of fluctuation could not be avoided. In 1532, the present Court of Session was constituted, on the model, it is believed, of the parliament of Paris. The chancellor, whose principal duties disappeared at the Union, was chairman of this body. It consisted of fifteen judges including a president, who was chairman in absence of the chancellor. In 1830, the number of judges was reduced to thirteen; and about the same time, the authority of some other tribunals, the chief of which were the Courts of Admiralty and Exchequer, was transferred to the Court of Session. It consists of two divisions, which are separate tribunals. Some of the judges also act as individual judges in courts of their own, in which capacity they are termed 'lords ordinary.' An ordinary case, on coming into court, is discussed before a lord ordinary, from whose decision there is a reference to one of the divisions of the Inner House,' as it is termed, where the remaining judges sit collectively. From them there is an appeal to the House of Lords. There is no such conventional distinction as that between law and equity known in Scotland, and hence English lawyers, who are apt to measure all other systems by their own, absurdly enough speak of the Court of Session as a court both of law and equity.' Besides the usual adjudication of litigated cases, there are two very useful descriptions of action peculiar to this court. The one is called an action of 'declarator,' which a person who is puzzled about any difficulty, and is afraid of

In Scotland, there is a usage as absurd as that of granting rules in the Queen's Bench prison. A debtor from any part of the United Kingdom may take the benefit of sanctuary in Holyrood, a suburb of Edinburgh, including some fine open grounds. While in this sanctuary, and having a written protection, procurable for a fee, the debtor is sheltered against all writs for civil claims, those of the state alone excepted; and he is at liberty to quit this sanctuary during the whole twenty-four hours of Sunday. This is the last existing relic of the privilege of sanctuary in Britain, perhaps in Europe.

There has latterly been some indications of the assimilation of the legal usages of Scotland to those of England, and it is highly desirable that an end should speedily be put to all existing diversities.

THE FRENCH CODES.

The ancient laws of France were a mixture of the civil, feudal, and canon law. Partly they were the doctrines of the authorities on the civil law, and partly they were the ordinances issued by the various monarchs. By far the greatest portion, however, in bulk, consisted of the peculiar feudal customs of the various provinces. In these the feudal system was sometimes retained in so high a state of purity, that the collections of provincial customs are esteemed excellent authorities on the subject. But it was not merely in each province

that there was a local custom. The power of the crown, Such were the laws issued under the government of or any other paramount legislature, was so feeble, that Napoleon, commonly called Les Cinq Codes, or the Five wherever an assembly of men were held together by one Codes. There are other collections of regulations, which common tie, as where they were co-vassals of one lord, should be added to make up a complete body of French or members of the same civic community, they had in laws-a military code, issued by Napoleon; regulations some measure a code of laws of their own. The royal concerning woods and forests, issued under Charles X.; codes, which existed on a large scale, are estimated at various laws as to the press and theatrical exhibitions, about 300, but of the number of inferior local customs and alterations of the penal code, issued under the it would be impossible to make an estimate. Voltaire government of Louis-Philippe; and lastly, the enactobserves, that a man travelling through his country has ments under the existing republic. It is simply in to change laws as often as he has to change horses, and the Five Codes, however, passed under Napoleon, and that the most learned barrister in one village will be a confirmed at the Restoration, that the modern laws of complete ignoramus a few miles off. The seignorial France are known to Europe at large. They are genecourts were divided into three grades, according to the rally published in a small, thick, closely-printed volume; extent of the penal authority exercised by them. The and for the conciseness, clearness, and elegance of their principal courts of law were the parliaments of the re- language, and their intrinsic merits, they are a favouspective provinces. Seats in them were generally held rite subject of study with many British lawyers, while by purchase, or were in the hereditary succession of there are few places in civilised Europe in which they great families, who thus constituted a species of pro- are not generally known. Independently of the divifessional nobility. The decrees of these bodies were sion into books and sections, the paragraphs in each often baffled or reversed by the royal authority, exer- code are numbered straight on from the commencecised in the well-known form of lettres de cachet. These ment, an arrangement which gives peculiar facilities alterations of the decisions of the courts, however, were for reference. Thus there are in the civil code 2281 performed not as a judicial revision, but by the simple consecutively numbered paragraphs. In a country authority of the king; and thus the parliaments, being where the material of the law is so gigantic as it is in subject to no judicial control or responsibility, adhered England, it is of the highest interest to mark the pracbut slightly to fixed rules of law, and often acted accord-tical working of this grand effort at simplification. To ing to their own will and discretion. The jury, even an unlearned person in this country, it is a much easier so much of it as may have existed under the old feudal thing to know the law of France on any particular form, had entirely disappeared, and proceedings were point, than the law he is living under. If an English conducted in secret. Criminal investigations, instead | lawyer is asked a question, his answer involves refeof terminating in a conclusive trial as in England, were rences to commentaries, decisions, and statutes innuprotracted through a lingering succession of written merable; but in the general case, the answer of a pleadings and secret investigations, from which the French lawyer bears simple reference to such a paraaccused could never calculate on being free. The tor-graph of such a code. ture was extensively employed; but in the general case, only when there was as much circumstantial evidence as would justify a conviction in this country.

The whole of this system was swept suddenly away before the tide of the Revolution, but amid the troubled times that succeeded, it was long ere rulers could find peace and leisure for the erection of a substitute. In 1800, Napoleon appointed a commission to draw up a project of a civil code. The project when prepared was circulated for comment and suggestion, and was afterwards, along with the observations made on it by the different courts of law, discussed in the council of state and the tribunate. Thus was formed the Code Civil, or civil code of France, more generally known by the term Code Napoleon, which was applied to it under the Empire. Nearly at the same time, and in the same manner, was framed the Code de Procédure Civile, or code for regulating the form of process in civil actions, and specifying the jurisdictions of the various courts. Being a subject more connected with technical detail, and involving less of general principle than the civil code, its provisions were left almost entirely to the arrangement of the lawyers. Besides the technical directions in which lawyers are almost wholly interested, there are in this manual many which concern the ordinary proceedings of citizens at large, such as directions for the order to be taken regarding the effects of a deceased person, &c. This code is generally accompanied by a table of fees in law proceedings. In 1807, another code was promulgated, called the Code de Commerce, consisting of 648 sections. This is the commercial code of France, regulating partnership, bills and notes, banking, shipping, bankruptcy, &c. By this code provision is made for merchants choosing boards or courts from among their own number, called Tribuneaux de Commerce. The jurisdiction of these courts, which are very numerous, extends to questions between merchants, and disputes arising out of commercial transactions. In criminal legislation, a different order was pursued from that adopted in the civil; the procedure code was prepared and adopted before the crimes to which it was to apply, and the punishments it was to enforce, were defined. The Code d'Instruction Criminelle was promulgated in 1808, and the Code Pénal in 1810, |

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The French codes adopt the phraseology of the Roman law and many of its principles. The most striking deviation from the previous law of France, and the present system of other countries, is perhaps in the rules respecting succession. The children succeed to equal shares of the parents' property, whether it consist of land or movables; and if there be no legitimate children, illegitimate children may succeed. The parent is limited in the disposal of his property by will. He can only bequeath the half if he have one legitimate child, and the third if he have two. Restrictions somewhat similar are to be found in other countries with respect to movable property, but not as to land. The effect which the extensive partition, naturally occasioned by this law, has effected, and may effect, in France, is a subject of great interest to political economists. In the mercantile law there are several provisions unknown in this country, such as registers for hypothecs or securities held over movable goods or merchandise, and societies en commandite,' or partnerships in which certain managing members are responsible for the obligations of the company to the extent of their whole property, while the sleeping partners who advance money are not responsible beyond the amount of their shares. The chief improvement in the criminal law effected during the Revolution, and sanctioned by the code of instruction, was jury trial, to which Napoleon was much opposed: the system, as finally settled, bore more resemblance to the Scottish than to the English forin, prosecutions being conducted by public prosecutors, there being no grand jury, and the jury of final trial deciding by a majority. In other respects, the criminal law is more remarkable for its austerity than for its subserviency to the general good of the public. With Napoleon, though that object was not neglected, it was made secondary to the consolidation of his own power; and offences are measured less by their pernicious effects on society at large, than by the trouble or danger they might occasion to rulers. Hence was adopted in many cases the stern and simple method of putting arbitrary power over criminals into the hands of the administrators of the law, while punishments of the highest kind were reserved for offences against the authorities,

HISTORY OF ANCIENT NATIONS.