after Henry VIII. yet they were much longer than in the time of king Edward III.; and the pleaders, yea and the judges too, became somewhat TOO CURIOUS therein. So that that art, or dexterity of pleading, which in its use, nature and design, was only TO RENDER THE FACT PLAIN AND INTELLIGIBLE, AND TO BRING THE MATTER TO JUDGMENT WITH A CONVENIENT

CERTAINTY, began to degenerate from its primitive simplicity, and the true use and end thereof, and to become A PIECE OF NICETY AND CURIOSITY: which how these later times have improved, the length of the pleadings-the many and unnecessary repetitions-the many miscarriages of causes, upon small and trivial niceties in pleading, have too much witnessed (a).

I should now say something touching the times since Hen. VII. to this day, and therefore shall conclude this chapter with

(a) What would sir Matthew Hale have said, had he lived in these times of "nicety and curiosity ?"-times in which pleading seems to be involved in all that perplexity can suggest, or prolixity supply! He might, perhaps, impute it to incapacity, or to design; in either light, a reproach to those, whose duty it is, not only to be well informed of the merits of a cause, but to apply the pleadings to the real point in controversy; and that in a inode the most simple and intelligible. The science of pleading (however those who do not understand, may affect to despise it) is admirably calculated for the purposes of analysing a cause; of extracting, like the roots of an equation, the true points in dispute, and referring them with all inaginable simplicity to the court or to the jury. It is reducible to the strictest rules of pure dialectic; and were it scientifically taught in our publick seminaries of learning, would fix the attention, give a habit of reasoning closely, quicken the apprehension, and invigorate the understanding as effectually as the famed Peripatetic system; which, how ingenious and subtle soever, is not so honourable, so laudable, or so profitable, as the science in which Littleton exhorts his sons to employ their courage and their care. Jones's Isæus, pref. disc. 25. The earl of Mansfield, who, with the most comprehensive and enlightened genius,

possessed the most consummate and
enlarged knowledge, remarked, that
"the substantial rules of pleading are
founded in strong sense, and in the
soundest and closest logic; and so ap-
pear, when well understood and ex-
plained: but by being misunderstood
and misapplied, are often made use of
as instruments of chicane." 1 Burr.
319. Though this science, when pro-
perly applied, merits every commen-
dation, yet nothing would perhaps
more prevent "the many miscarriages
of causes," or more promote the ends
of justice, than to enact that the de-
fendant shall in all actions, on giving
previous notice of his intended defence
to the plaintiff, be permitted to plead
the general issue, and give the merits of
his case in evidence. Without referring
to the numerous cases in which the le-
gislature has already permitted it to be
done, it need only be remarked, that
in the mixed action of ejectment it is
the uniform practice: so in personal
actions of considerable importance; as
questions arising on mercantile con-
tracts, by insurance, bills of exchange,
and the like: so in almost all special
actions on the case, and in a great mea-
sure even in the common action of as-
sumpsit. Lamentable at present is the
increase of costs upon the suitor, and
that even in cases where he succeeds;
an evil, which if not speedily correct-
ed, may in the end be productive of
serious consequences.

some general observations touching the proceedings of law in these, later times.

And first, I shall begin where I left before, touching the length and nicety of pleadings, which at this day far exceeds not only that short, yet perspicuous, course of pleading, which was in the time of Henry VI. Edward IV. and Henry VII. but those of all times whatsoever, as our vast presses of parchment for any one plea do abundantly witness.

And the reasons thereof seem to be these, viz.

First, because in ancient times the pleadings were drawn AT THE BAR, and the exceptions also taken at the bar: which were rarely taken for the pleasure, or curiosity, of the pleader; but only, when it was apparent, that the omission, or the matter excepted to, was for the most part THE VERY MERIT AND LIFE OF THE CAUSE; and purposely omitted, or mispleaded, because his matter, or cause, would bear no better. But now, the pleadings being first drawn in writing, are drawn to an EXCESSIVE LENGTH, AND WITH VERY MUCH LABORIOUSNESS AND CARE ENLARGED, lest it might afford an exception not intended by the pleader, and which could be easily supplied from the truth of the case; lest the other party should catch that advantage, which commonly the adverse party studies;-not in contemplation of the merits, or justice, of the cause, but to find a slip to fasten upon; though in trnth, either not material to the merits of the plea, or at least not to the merits of the cause, if the plea were in all things conformable to it.

Secondly, because those parts of pleading, which in ancient times might perhaps be material, but at this time, are become only mere styles and forms, are still continued with much religion; and so all those ancient forms at first introduced for convenience. but NOW NOT NECESSARY, or it may be, antiquated as to their use, are yet continued as things wonderfully material, though THEY ONLY SWELL THE BULK, and contribute nothing to the weight of the plea.

Thirdly, these pleas being mostly drawn by clerks, who are paid for entries and copies thereof, the larger the pleadings are the more profits come to them; and the dearer the clerk's place, the dearer he makes the client pay (a).

(a) It may be considered as a re- that the fees of its officers should be proach to the administration of justice, in proportion to the length of its pro

Fourthly, an overforwardness in courts to give countenance to frivolous exceptions, though they make nothing to the true merits of the cause; whereby it often happens that causes are not determined according to their merits, but do often miscarry for inconsiderable omissions in pleading (a).

But, secondly, I shall consider what is the reason that in the time of Edward I. one Term contained not above two or three hundred rolls, but at this day one Term contains two thousand rolls, or more.

The reasons whereof may be these, viz.

1st, Many petty businesses, as trespasses and debts under 40s. are now brought to Westminster, which used to be dispatched in the county or hundred courts. And yet the plaintiffs are not to be blamed, because at this day those inferior courts are so ill served, and justice there so ill administered, that they had better seek it (where it may be had) at Westminster, though at somewhat more expense (b).

2dly, Multitudes of attornies practising in the great courts at

ceedings. In one of the superior courts at Westminster, some of its officers are legally entitled to a fee from the plaintiff in every cause, on the filing of his declaration; a fee which is either greater or less, as the declaration is either long or short: though the officers have no extra (if any) trouble, in the one case or the other; and though no part of the pleadings are now, nor have been for many years, drawn either by themselves or their clerks. This has long been a subject of complaint. Exclusive of the burthen on the suitor, which in many cases is not light, it prevents the court itself from bearing that share of the public business which it is calculated to sustain, and bounden to endure.

By stat. 5 & 6 Ed. 6. c. 16. "against "buying and selling of offices," the sale of all offices "which concern the "administration or execution of jus"tice, or any clerkship to be occupied "in any manner of court of record "wherein justice is to be ministred," is positively forbidden: but by a provisoe, (s. 7.) the act is not to extend "to any of the chief justices of the king's bench, or common place, or

64

"to any of the justices of assize." Were this provisoe repealed, and an adequate compensation made to the elevated characters in whose favour it was enacted, it would no doubt be grateful to them and beneficial to the public. It would not only silence the clamour of disappointment, but contribute, by wise and popular means, to enforce the true spirit of the act; namely, (as its preamble states), "persons worthy and meet to be ad"vanced, would be preferred, and no "other." See the case of Blackford v. Preston, 8 T. R. 92. and 49 Geo. 3. c. 126.

(a) However pertinent this fourth reason of sir Matthew Hale might have been heretofore, it is not now in the least degree applicable; the courts having been, for many years, and that much to their honour, astute to discountenance and reprove all frivolous exceptions, and to forward as much as possible, the true merits of every cause.

(b) This is now in a great degree remedied by the erection of courts of conscience for the recovery of small debts.

Westminster, who are ready at every market to gratify the spleen, spite, or pride of every plaintiff (a).

3dly, A great increase of people in this kingdom above what they were anciently; which must needs multiply suits.

4thly, A great increase of trade and trading persons, above what there were in ancient times; which must have the like effect.

5thly, Multitudes of new laws, both penal and others; all which breed new questions, and new suits at law; and in particular the statute touching the devising of lands; cum multis aliis.

6thly, The multiplication of actions upon the case, which were rare formerly, and thereby wager of law ousted, which discouraged many suits. For when men are sure, that in case they rested upon a bare contract without specialty, the other party might wage his law, they would not rest upon such contracts without reducing the debt into a specialty, if it were of any value; which created much certainty, and accorded many suits.

And herewith I shall conclude this chapter, shewing what progress the law has made, from the reign of king Edward I. down to these times (b).

(a) The number of attornies now (1794) on the rolls of the different courts at Westminster, is almost incredible; more than two thousand practise within London and its environs.

(b) Mr. Justice Blackstone having, in the most elegant and judicious man

ner, continued this plan of sir Matthew Hale, from the reign of Henry VII, to that of his present Majesty, I therefore take the liberty of referring the reader to the fourth volume of the Commentaries of that learned judge¬ from page 429 to 443 inclusive.

CHAP. IX.

Concerning the settling of the common law of England, in Ireland and Wales; and some observations touching the isles of Man, Jersey, and Guernsey, &c.

THE kingdom (a) of Ireland being conquered by Henry II. about the year 1171 (b), he, in his great council at Oxon, constituted his younger son, John, KING thereof; who prosecuted that conquest so fully, that he introduced the English laws into that kingdom, and swore all the great men there to the observation of the same. Which laws were, after the decease of king John, again reinforced by the writ of king Henry III. reciting that of king John. Rot. Claus. 10 Hen. 3. memb. 8. & 10. Vide infra, & Pryn. 252, 253, &c.

And because the laws of England were not so suddenly known there, writs from time to time issued from hence, containing divers capitula legum Angliæ, and commanding their observation in Ireland; as Rot. Parl. 11 Hen. 3.-the law concerning tenancy by curtesy, Rot. Claus. 20 Hen. 3. memb. 3. dorso-the law concerning the preference of the son born after marriage, to the son born of the same woman before marriage, or bastard eigne & mulier

(a) It was only entitled the dominion, or lordship, of Ireland, (stat. Hiberniæ 14 Hen. III.) and the king's stile was no other than dominus Hibernia, lord of Ireland, till the thirtythird year of Henry VIII. when he assumed the title of king, which is recognized by act of parliament, 35 Hen. VIII. cap. 3.-Ireland, previous to the union, was a distinct though a dependant, subordinate, kingdom. As to the deduction and change of the king's title in respect to Ireland, see Seld. Tit. Hon. b. 1. c. 4. s. 2.

(2) Notwithstanding what hath been said by many historians of the total submission of Ireland to Henry II. sir John Davis, very properly observes,

that this supposed conquest did not extend much further, than the neighbourhood of Dublin.-With what propriety can that be called a conquest, where the conqueror cannot enforce his own regulations?—It was by very slow degrees only, that the Irish were civilized and brought to a state of submission. Bar. Obs. on Stat. 141. The Inhabitants of Ireland are for the most part, descended from the English, who planted it as a kind of colony, after the subjugation of it by Henry II.; and the laws of England were then received, and sworn to, by the Irish nation, assembled at the council of Lismore. Pryn. on 4 Inst. 249.