and unexceptionable has been effected, it would be invidious to scrutinise too nicely the errors which have crept into the new laws, errors hardly to be avoided when every thing was to be done all at once. But many sound lawyers lament the obscure provisions of several parts of the Church Nullum Tempus Act, and the Wills Act: No one can see any use in the sacrifice of a real or natural principle to the love of symmetry in the Act letting in the half-blood, whereby estates are carried in directions the most remote from all the desires and designs of landowners: Most practitioners wish that greater care had presided over the new rules of practice and pleading: All must blame the neglect of giving the trader no remedy against the salaries and other stipends of his customers, when every one of these (in the common course of business) is exempted from personal liability; and few are much pleased, unless great surprise always yields pleasure, with finding a statutory enactment abolishing contingent remainders. The catalogue might easily be extended of the defects and oversights which were owing immediately to the wholesale law amendments recently made, but were in reality imputable to the stubborn resistance of all change which had worked up the community to a kind of impatience towards all existing law. But enough has been said to illustrate our first position, and to show the magnitude of the evil first noted in the beginning of this paper, the too great slowness to amend the defects in our Jurisprudence. Proceed we now to consider the other evil, that which is, as we have seen, so apt to arise out of the former, too great impetuosity in adopting changes proposed in the established system.

It was a remark of Lord Bacon, distinguished by his wonted sagacity and fancy, a combination in him more singularly felicitous than in all men besides, that propositions have wings, but operation and execution have leaden feet.1 But it asks not his profound sense to tell us, though his imagination would have nobly illustrated, the advantages which are derived from the leaden foot, when the wing would hurry us away from the path of cautious, practical wisdom. Whoever

1 Remains, 367.

views the case in its different aspects must be aware how deliberately and circumspectly all changes in the law ought to be undertaken, and how carefully and tenderly executed.

In the first place. When any law has long been in use, its operation must have affected the state of society, and even if it was originally ill-contrived, this state must have become so much adapted to it, that a change cannot be made without unsettling many relations which have taken deep root and grown up to maturity. Interests will be affected by the alteration which justice as well as policy require us gently to deal with; for they have possibly been called into existence, certainly much increased, by our own measures, and to remove their foundation, or shake their props, or withdraw the clamps and screws that fasten them, is neither just nor prudent.

Secondly. There has been a like adaptation of other branches of our Jurisprudence to the given law which we are supposing had been imprudently, even hurtfully, introduced. All these other laws, with the effects which they have produced upon society, must be affected by the repeal.

Thirdly. It often happens that a counteraction has been provided for the evil effects of a bad law long operating. Other laws may have mitigated the mischief, or men's contrivances may have met its hurtful tendency with institutions calculated to disarm or to diminish its evil influence.

All these considerations show how cautiously we ought to touch existing laws which have long been in force. But another consideration ought never to be absent from the mind of the lawgiver when he is introducing any change, and it should be as constantly present to him when he is making a wholly new law as when he is repealing or altering an old one. For let us observe,

Fourthly, How limited are the faculties of men in their attempts to see into futurity, and provide for events that are to happen after their own day. But all laws are made with a view to the future, and we have little power indeed of foreseeing how they will work. After all care has been taken in framing a legislative provision, hardly has it begun to operate when some circumstance occurs which had never been thought of, for which no provision had been made, of which no account had been taken. This happens every day; and

it is enough to make us most cautious in all our legislative steps. The less able we are to see before us, the more anxiously ought we to look behind us and around us. The more thick the darkness which hangs over all in one direction, the more sharply should our eyes be pointed towards all in those other directions, all in the regions which shine in the light of history, all on each side of us which it is our own fault if we do not accurately discern.

These considerations are plain and obvious. They require no elucidation from the experience of past times. But if they did, the history of all countries would easily and copiously afford it, and of our own most of all, because we have more laws newly made than all the rest of the world besides. But we have said enough to excite the attention of those who are wellwishers of the great science of Jurisprudence, and to make them join knowledge and caution with zeal for amending our legal system. To which we may add in one word, the incalculable mischief done by rash and ill-conducted changes in bringing to contempt all law amendment, and thus retarding the progress which they are anxious to accelerate.

Such are our doctrines, and by these we shall always be guided in the conduct of this work. 1

1

1 We have mentioned and illustrated the effects produced by such men as Lord Eldon, and those like Mr. Perceval and Mr. Canning who seconded him for party purposes. The remarks above made have no application to Mr. Pitt and Mr. Dundas, statesmen of a higher order. The former was no enemy of

improvement; the masterly Indian Reports of the latter place him among the greatest and most judicious reformers. They amused themselves with the Canning school; they belonged not to it. Even Mr. Canning, the Coryphæus of these party anti-reformers, himself used to differ widely with Lord Eldon on some subjects connected with improvement. The sound doctrines on trade of Mr. Huskisson greatly influenced him, and for a time he was liberal on the Catholic disabilities. He had, however, a violent relapse on this last question upon reentering office in 1823: and he removed Lord Wellesley from Ireland in 1827, in order to avoid making his Government appear constructed on the principle of Catholic Emancipation.

ART. III. OF THE DISTINCTION BETWEEN LAW AND FACT.

An Analytical Digest of all the reported Cases determined in the House of Lords and the Courts of Law from 1756 to 1843, and a full Selection of Equity Decisions. The Third Edition, by R. TARRANT HARRISON, Esq., of the Middle Temple. London, 4 vols. 1844.

THE above useful work furnishes much statistical information, important to all who are interested in the present state and future progress of the law of this country. The fourth of four considerable volumes is occupied entirely by an Index of the mere names of the cases referred to in the three preceding volumes, which last also contain brief abstracts of the points determined. The number of cases is about 44,000; they comprise most of, though not all the reported cases which have been decided from the year 1756, when Lord Mansfield first began to preside as Chief Justice of the King's Bench, to Easter term, 1843, including a space of eighty-seven years. The average number of cases annually decided and reported thus appears to be about 500; but it is probable that the present rate of increase is treble that amount, or 1500 per annum. This vast and accelerated increase in the mass of precedents, which constitute so material a part, although but a part, of the corpus juris, naturally suggests the necessity, at least the expediency, of inquiring into the causes which produce a series of authorities so rapidly divergent.

Those questions naturally invite the earliest attention, and are in their own nature most important, which concern the practical application of the first great elementary principles of

1 The compiler states that the Index does not include all the equity cases, but only a selection.

justice. Our present inquiry will be confined to a subject on which a conflict of opinion has been manifested, and which has given birth to numerous decisions the distinction between

matter of law and matter of fact.

The well-known elementary rule, "ad quæstionem juris respondent judices, ad quæstionem facti respondent juratores," very clearly defines the provinces of the court and of the jury. Be questions of law and fact ever so intimately connected by legal definition or allegation, although the terms of the issue to be tried involve both, yet, upon the trial, the distinction is usually made without confusion or difficulty, the power and duty of the jury being directed and confined wholly to the question of fact, and their decisions being expressed either simply by means of a special verdict, to which the court afterwards applies the law in giving judgment, or being embodied in a general verdict, in which case, although such verdict comprise matter of law as well as matter of fact, as where they find a defendant guilty of a conversion, or a criminal guilty of theft, their office is still confined merely to the facts. For, in delivering a verdict which contains matter of law, they act only according to the direction of the court, that the facts, if proved, constitute a conversion in law in the one case, or a larceny in the other. So far the application of the general rule is plain and clear; nor could it well be otherwise, so long as the functions of a jury were confined simply to the finding of mere facts, as distinguished from such conclusions as will presently be noticed. Doubts which arise whether a particular question be one of law or fact, as contradistinguished from each other, seem to concern only such general conclusions from facts as are essential to a conclusion in law, but which do not themselves depend upon the application of any rule of law.

It will be proper to premise a few remarks on the origin of such questions.

The administration of the law consists in annexing defined legal consequences to defined facts. The facts so defined must be expressed in terms of known popular meaning, or be capable of translation into such terms by virtue of legal interpretation. If technical expressions were not so convertible into ordinary language, they could not be explained