all practical purposes. Even in England, pleading is at present but the shadow of what it once was; in most personal actions, the declarations declare nothing, as in ejectment, and in actions of general indebitatus assumpsit, and particularly that for money had and received to the plaintiff's use. Neither do the general pleas at present used disclose the real grounds of the defence. In this manner that overwrought system has re-acted upon itself. It must be admitted, however, that it has produced the forms of criminal indictments still in use, the excellence of which can only be duly appreciated by comparing them with the acts of accusation of other countries.*

* I have before me the indictment or acte d'accusation, in the case of the murderers of Fualdes, on their second trial at Alby, in France, in the year 1818. It is of immense length, and this length is not produced by harmless tautology or the repetition of mere words of form, nor by stating the case in different ways, in order to make the allegations and proofs exactly agree; but it is a minute and circumstantial narrative, not only of the particulars which attended the perpetration of the criminal act, but of all the evidence with its successive variations, the conduct of the accused and of the witnesses on their examinations; and all the gossip which occurred in the course of the preparatory proceedings. All this is narrated in an inflated, rhetorical style, well larded with epithets, and stuffed with declamation, and every thing in the instrument appears designed for theatrical effect, and calculated to make a strong impression upon the jury and the public against the accused. A few extracts will show what I mean.

After relating the circumstances of the murder with all their disgusting details, the Attorney General proceeds:

"After the unhappy Fualdes had lost his life in the most barbarous manner, his corpse was wrapped in a sheet and blanket, tied up, like a bale of goods, with cords of the thickness of a finger," &c.-The remainder of the details is in the same style.

The accused being all joined in the same indictment, the part which each took in the murder is separately noticed: the following is the charge against Anne Benoit, one of them.

"Anne Benoit co-habited with Baptiste Collard, in the house which was the theatre of the crime. On the 19th of March, about 8 o'clock in the evening, she was found concealed in the street Hebdomadiers near the house of Mis

1

Thus far we have improved on the common law, the honour of further improvements is still in reserve for us. While the common law is and ever will be the best system of political and criminal legislation that has ever been known, I cannot say

sonnier. By her own avowal, the fatal handkerchief with which the unhappy Fualdes was gagged, belongs to ber; she blushed when somebody told her that no doubt she had lent it to Baptiste Collard, her pretended husband, to strangle therewith the Sieur Fualdes."

Madame Manson, originally a witness in the cause, but in consequence of having wavered and varied in her depositions, now charged as an accomplice, in order, by working upon her fears, to extract from her more explicit testimony, is indicted in these words:

"A woman named Manson, born Enjelran, after having declared before the prefect of the Aveyron, that she had been an eye witness to the murder of Fualdes, that she was in Bancal's house at the moment when it was committed, that she had been exposed to the greatest dangers; after having made the same avowal to divers persons, appeared at the trial and denied the facts; she swore she never had been in Bancal's house, and her assertions being contradicted by her countenance, her looks and her gestures, the sight of the accused produced in her convulsions, and real or simulated faintings, several times during the sitting, she fell, or appeared to fall into a swoon, the words 'dagger'—' murder'-escaped from her lips," &c. concluding that because she has thus varied in her testimony, she is now indicted as an accessary to the murder.

The whole is in the same style, calculated to overwhelm the accused, and to present them to the jury, not so much for trial as for conviction.

This form of indictment is not borrowed from the civil law; for the civilians maintain that such an instrument ought to contain only what is material and indispensably necessary to understand the true grounds of the accusation, which they express by the following doggerel line :

Quís, quid, ubi, quibus auxiliis, cur, quomodo, quando.

This is in fact all that is necessary to be stated; but the French attornies general have preferred adopting the inquisitorial form now in use, which is, undoubtedly, better calculated for the display of eloquence than for the attainment of justice.

At the same time I must acknowledge that there is in the present mode of administering criminal justice in France something well worthy of imitation, even in this country. In the discussions which take place, whether on a trial or law argument, the accused always has the last word. It is so likewise in Scotland.

I think it entitled to the same praise in what may properly be called the jus civile, I mean that part of the law which governs the construction of contracts between man and man, and establishes the rules of meum and tuum. In this part of the system too much remains of those subtle and nice distinctions originally introduced by the false logic of the schools, and preserved by the force of custom and respect for antiquity. The habit of reasoning on artificial principles still continues in England; hence their jurists too often generalise where they should distinguish, and distinguish where they should generalise. Thus they lay hold of some general principle, as for instance" that a factor has no right to pledge his principal's goods," and apply it indiscriminately to almost every case. * Thus the rule caveat emptor, borrowed from the civil law and applied there only, for obvious reasons, to sales of slaves, horses, and cattle,† is applied in England to all species of dealings, to the great detriment of commerce. Thus a distinction is raised between obligations arising from contracts and those imposed on the party by the operation of law; what excuses from the performance in the one case, is held not to do so in the other; a rule which is not founded

* Pickering v. Bush, 15 East, 44. Martins v, Coles, 1 M. & Selw. 146. tflib 21. De Edilitio Edicto, tit. 1.

Chandler v. Lopus, Cro. Jac. 4. Bree v. Holbech, Doug 655. Parkinson v. Lea, 2 East, 314, and numerous other cases. This doctrin is approved of even in a Treatise on Equity, 1 Fonb. 380, in note. Mr. Wooddeson calls it an unconscientious maxim. 2 Wood. lect. 415. In South Carolina, it is not considered to be law, even as respects the sale of slaves, Timrod v. Shoolbred, 1 Bay, 319; Whitfield v. M’Leod, 2 Bay, 380; Lister v. Exrs. of Graham, 1 Rep. Const. Court, 182.

either on reason or justice.* It is said that Judges are not to make contracts for the parties, but to explain them. This is perfectly true, but it is not perceived that this literal construction leads to the very error which is wished to be avoided; for neither party could possibly foresee at the making of a contract all the accidents that might impede or prevent its performance, and the Judges who so decide, virtually insert the words "at all events" which the instrument they are construing does not contain. Our own Judge M Kean very properly, in my opinion, overruled this doctrine in the case of Pollard v. Shaffer,† and it seems it was also formerly denied to be law in the Court of Chancery in England.‡

These and other similar rules, however unjust, might perhaps be tolerated in a mere municipal code; but when we find them introduced into the commercial and maritime law, as for instance in the case of Cook v. Jennings,§ and other subsequent cases, in which the elegant doctrine of freight pro ratâ itine

So late as the year 1802, Lord Alvanley, Chief Justice of the English Court of Common Pleas, was pleased to say, that this doctrine, as laid down in the case of Jane v. Paradyne, Alleyn, 26, is founded on MUCH GOOD SENSE, Touteng v. Hubbard, 3 Bos. & Pul. 300. I have often derived much pleasure and instruction from the opinions of this learned Judge and eminent jurist; I am therefore the more astonished at his having gone so far to vindicate a principle, which in his country may, indeed, be venerable from its antiquity, but cannot stand the test of close and logical investigation. This shews how difficult it is even for the greatest minds to divest themselves of ancient prejudices, particularly when seconded by the soft whisperings of national pride.

+ 1 Dall. 210.

3 Bur. 1639.

§ 2 Term Rep. 381.

ris, laid down by Lord Mansfield in the case of Luke et alv.Lyde is made to yield to the niceties of the Norman school, we lament that this beautiful system of general jurisprudence, which belongs not to one nation, but to all the world,† should be disfigured by a forced adaptation to certain local theories. This is what I am sorry to say has happened in England. The law of freight, insurance, &c. is, in many important and substantial points, different there from what it is in the rest of the world, and no impartial jurist will say that it has been improved by the anomalous doctrines that have been introduced into it. Some of them are contrary to every principle of sound jurisprudence. This is not the place to advert to them in detail; but I may instance the rule which makes the sentences of foreign Courts of admiralty conclusive in a suit on a policy of in

2 Bur. 889.

Thus in mercantile questions, such as bills of exchange and the like; in all marine causes relating to freight, average, demurrage, insurances, bottomry, and others of a similar nature, the law merchant which is a branch of the law of nations is regularly and constantly adhered to, so that in all disputes relating to prizes, to shipwrecks, to hostages, and ransom bills, there is no other rule of decision but the great universal law, collected from history and usage, and such writers of all nations and languages as are generally approved and allowed of. 4 Black. Com. 67.

The maritime law is not the law of a particular country, but the general law of nations; non erit lex alia Romæ, &c. Lord MANSFIELD, in Luke et al. v. Lyde. 2 Bur 887.

C'est par le droit des gens que la navigation a toujours été régie. Elle est le lien de la société des peuples. Chez les nations commerçantes, les loix maritimes sont à peu près les mêmes, attendu la réciprocité des intérêts. On doit donc avoir recours aux Loix des autres peuples, soit pour mieux connoître l'Esprit des ordonnances du Royaume, soit pour décider les cas qu'elles n'ont pas prévu. 1 Emerigon, 21.