Thomas De Quincey—a man whose genius and diversified and profound acquirements constitute him one of the most remarkable men of the age; and the book quoted in the text is worthy of him.
The legislature hath since shown many indications of agreement with the opinion of my unhappy swell: having lately abolished arrest on mesne process altogether, as affording creditors too serious a chance of preventing the escape of a fraudulent debtor; and having still more recently made a step towards the abolition of arrest on final process! [1844.]
[Greek:??? ?a? ?p? ???ss?? ???t?? ??????? ??e? a??:Tou_ kai\ a)po\ glÔ/ssÊs me/litos glyki/Ôn r(e/en au)Ê/]
Blackstone's Commentaries, vol. iv. pp. 134-5.
Blackstone, vol. iii. p. 400, where it is stated, however, that "that practice is now disused."
Blackstone's Commentaries, vol. iv. p. 135.
By a very recent statute (6 and 7 Vict. c. 73, §§ 37, 43)—passed in 1843—salutary alterations have been made in the law regulating the taxation of the bills of attorneys and solicitors. Except "under special circumstances," a client cannot now have his attorney's or solicitor's bill taxed, after the lapse of twelve months since it was delivered. If as much as one-sixth of the bill be struck off, the attorney or solicitor must pay the costs of the operation; if less than one-sixth, the client will have that satisfaction.
This was written about the year 1838-9.
This mode of treating the remains of a felo de se was (on the 8th July 1823) abolished by Act of Parliament (stat. 4 Geo. IV). The remains of a felo de se are ordered by that act to be buried privately in the churchyard, but without the performance of any rites of Christian burial. The Prayer-book also prohibits the "office for the burial of the dead from being used for any that have laid violent hands upon themselves."
I suppose myself to be alluding here to a very oppressive statute, passed to clip the wings of such gentlemen as Mr. Snap, by which it is enacted that, in actions for slander, if the jury find a verdict under forty shillings, e.g. as in the case in the text, for one farthing, the plaintiff shall be entitled to recover from the defendant only as much costs as damages, i.e. another farthing; a provision which has made many a poor pettifogger sneak out of court with a flea in his ear. Since this was written, a still more stringent statute hath been made, which, 'tis to be hoped, will put down the nuisance.
"Can the author of Ten Thousand a-Year," asked some anonymous person during its original appearance—"point out any class of Dissenters who allow their members to frequent theatres?" The author believes that this is the case with Unitarians—and also with many of the members of other Dissenting congregations—especially the younger members of even the stanchest Dissenting families.
This fearful-looking word, I wish to inform my lady-readers, is an original and monstrous amalgamation of three or four Greek words—[Greek:??a??-?a?t-a????p?-p????:kyano-chait-anthrÔpo-poiÔn]—denoting a fluid "which can render the human hair black." Whenever a barber or perfumer determines on trying to puff off some villanous imposition of this sort, strange to say, he goes to some starving scholar, and gives him half-a-crown to coin a word like the above; one which shall be equally unintelligible and unpronounceable, and therefore attractive and popular.
"Vitas hinnuleo me similis, ChloË,
QuÆrenti pavidam——
Matrem.
—— et corde et genibus tremit."—Hor. i. 23.
See ante, p. 138.
So much curiosity has been excited among lay readers in this country and in America, and also among professional persons in France and Germany, as to the real nature of the species of action mentioned in the text, that the author is induced here to give some further account of a matter which enters so considerably into the construction of this story. The action of Ejectment is described with minute accuracy in the text; has been in existence for at least five hundred years, (i.e. since the close of Edward II., or beginning of Edward III., A. D. 1327;) and its venerable but tortuous fiction has been scarcely even touched by the "amending hand," which lately (1834) cut away so many cumbrous, complicated, and quasi obsolete portions of the law of action, (see Stat. 3 and 4 Will. 4, c. 27, § 36.) The progress of this action is calculated to throw much light on some of our early history and jurisprudence. See an interesting sketch of it in the first chapter of Mr. Sergeant Adams' Treatise on Ejectment. It was resorted to for the purpose of escaping from the other dilatory, intricate, and expensive modes of recovering landed property anciently in existence. The following is the description given of it by Lord Mansfield—and is equally terse and correct, and applicable to the present mode of procedure. "An Ejectment is an ingenious fiction for the Trial of Titles to the possession of Land. In form it is a trick between two, to dispossess a third by a sham suit and judgment. The artifice would be criminal, unless the Court converted it into a fair trial with the proper party. The control the Court have over the judgment against the Casual Ejector, enables them to put any terms upon the plaintiff which are just. He was soon ordered to give notice to the tenant in possession. When the tenant in possession asked to be admitted defendant, the Court was enabled to add Conditions; and therefore obliged him to allow the fiction, and go to Trial on the real merits."—(Fair Claim v. Sham Title,[*] 3 Burr. 1294.) This action is now, in effect, the only direct common-law remedy for the recovery of land in England and Ireland; in many of the United States of America the action of Ejectment is retained—"with its harmless, and—as matter of history—curious and amusing English fictions."—(4 Kent's Comment. p. 70, note e:) but in New York, the action of Ejectment is "stripped of all its fictitious parts."—(Id. ib.)
[*]These fantastical names are now almost invariably abandoned for those of "John Doe" and "Richard Roe."
Blackstone's Commentaries, vol. iii. App. pp. ix. x.
"A warranty will not extend to guard against defects which are plainly and obviously the object of one's senses: as if a horse be warranted perfect, and wants either a tail, or an ear: unless the buyer in this case be blind."—3 Blackst. Comm. 166.
On the 22d August, 1843, (since the publication of this work,) a brief but most important statute (6 and 7 Vict. c. 85) was enacted, "for improving the Law of Evidence"—the chief object of which was, to remove all such difficulties as that which formed the subject of Mr. Parkinson's inquiries. Witnesses are now no longer "incompetent" to give evidence by reason of crime or of any interest which they may have in, or in respect of, the subject-matter of the action.
Whether Mr. Aubrey was justified in doing this, under his circumstances, is a question which the author has seen, and heard, several times keenly discussed. It is surprising how much may be said on both sides of the question, by ingenious casuists.
For this glorious and inestimable safeguard of the liberty of the subject, we are indebted to the ancient common law of England, strengthened from time to time by the legislature, and now made secure against the insidious encroachments of tyranny. The chief statute passed with this view is known as The Habeas Corpus Act (31 Car. II. c. 2), and "has been incorporated into the jurisprudence of every state in the Union" in America.—Story, Commentaries on the Constitution of the U. S., vol. iii. p. 208.
"It is a very common mistake," says Mr. Hallam, and the Lord Chief-Justice of the Queen's Bench had occasion, during Michaelmas Term 1844, publicly to make a similar observation, "not only among foreigners, but many from whom some knowledge of our constitutional laws might be expected, that the statute of Charles II. enlarged in a great degree our liberties, and forms a sort of epoch in their history; but though a very beneficial enactment, it introduced no new principle, nor conferred any right upon the subject.... It was not to bestow an immunity from arbitrary imprisonment, which is abundantly provided in Magna Charta (if, indeed, not much more ancient,) that the statute of Charles II. was enacted; but to cut off the abuses by which the government's lust of power, and the servile subtlety of crown lawyers, had impaired so fundamental a privilege."—3 Hall. Const. Hist., pp. 16, 17.
The general character of the Newspaper Press, both in London and the country, has so greatly improved of late years, as (with a very few despicable exceptions) to render the appearance now-a-days, of such a paragraph as that in the text, exceedingly rare. The Press is now, in most instances, presided over by educated and gifted gentlemen. It was far otherwise in 18—(the period named in the text.)
Before perusing this opinion, the reader should refer to the pedigree, post 441; without which the opinion will not be fully understood.
See the note (24) on page 437.
Till within a few years before the period in question, the law of England regarded the act done by Mr. Steggars as amounting only to a breach of trust, and consequently subjecting him to no criminal liability; on the ground that the £700 never having been actually in his master's possession, could not be the subject of a felonious taking. The alarming consequences of this doctrine led to the passing of stat. 39 Geo. III. c. 85, [passed on the 12th July 1799,] which declared such an act of embezzlement to be felony, punishable with fourteen years' transportation: this was lately repealed, but re-enacted by stat. 7 and 8, Geo. IV. c. 29, § 47, [passed on the 21st June, 1827,] on the occasion of consolidating that branch of the criminal law.—See 4 Coleridge's Blackst. Comment. p. 231 (note).
The popular maxim that "possession is nine-tenths of the law," is founded on the salutary and reasonable doctrine of the law, that the party in possession of property is presumed to be the owner until the contrary shall have been proved. Consider how intolerable, and, in fact, destructive of civil society would be an opposite rule—if every one in the enjoyment of property were liable to be called upon to explain to any one challenging his right, how that right had been acquired! By the operation of the rule laid down in the text, a defendant in ejectment may (except in the case of landlord and tenant) always defeat the action, simply by showing the real title to be in some third party—without showing that the defendant holds possession with the consent, or under the authority of the real owner.—(Roe v. Harvey, 4 Burr. 2484; Doe v. Barber, 2 T. R. 749.) The defendant's evidence is thus altogether confined to falsifying his adversary's proofs, or rebutting the presumptions which arise out of them.—Adams on Ejectment, p. 319.—(3d Ed.)
See the note to Vol. II., Chapter V.
Lynx is here glancing at a rule of the Roman law on a point of great difficulty, interest, and importance—i.e. where two persons above the age of puberty perished by the same accident, the younger was presumed to have been the survivor; but if one was under the age of puberty, the other was presumed to have been the survivor.—(Dig. lib. 34, tit. 5, §§ 9, 22, 23.) It is very curious to see how this question is dealt with in modern times. The Code Civile (in France) adjusts the presumption to specific periods of life. If those who perished were all under 15 years of age, the eldest is presumed to have survived; if all above 60 years, the youngest. If some under 15, and others above 60, the former shall be presumed to have survived. If all were between 15 and 60 years of age, the male, (when the ages are equal, or within a year of being so) shall be presumed the survivor. If of the same sex, that presumption shall be admitted which opens the succession in the order of nature—of course the younger being presumed to have survived the elder.—(Code Civ. §§ 720-722.) It has been objected, that, though these rules are generally equitable, they are imperfect: for a man above sixty ought surely to be held to have survived a mere infant; and no provision is made for the case of persons under 15, and under 60 years of age perishing together. By the Mohammedan law of India, "when relations perish together, it is to be presumed that they all died at the same moment, and the heir of each immediately succeeds." The difficulty of the case arises, of course, from the circumstance of there being no evidence whatever as to the actual fact of survivorship. Our English law has not adopted any definite rule on the subject, but leans in favor of the survivorship of the party possessed of the property in dispute; and some regard seems to be had to the probability of the survivorship of the stronger party. Several very interesting cases of this kind have arisen in this country; and, generally speaking, our courts appear to have required some evidence of the fact. A singular case occurred in Queen Elizabeth's time, (1596.) Father and son were hanged at the same time, in one cart; being joint tenants of property, which, on their death, was to go to the son's heirs. According to one report (Noy) the father's feet were seen moving after the son's death; but other witnesses swore to the son's "shaking his legs" after his father's death. This the jury believed; found that the son survived; and his widow was therefore held entitled to her dower!—(Broughton v. Randall, Cro. El., p. 502.)
Chapter X., ante, p. 411.
See the note prefixed to Chapter V. Vol. II., for a full explanation of the above, and another important legal topic introduced into this work.
Not many years ago, the fate of an important case turned upon the existence of a tombstone: and a forged one was produced in court!—The validity of a great Peerage case is at this moment depending upon the genuineness of one of these dumb and gloomy witnesses. [1844.]
When the Judges of Assize preside in the Crown side (i. e. in the Criminal Court,) they wear their scarlet and ermine robes, and full-bottomed wigs.
This is a step often taken in trials of importance, when the counsel for either party apprehends danger to his client, from his opponent's witnesses remaining in court and hearing all the evidence which they are afterwards called to contradict. Either counsel has a right thus to exclude witnesses. The Court usually, in such cases, orders all the witnesses to withdraw.
See, for a discussion of this point, the preliminary note to Vol. II. ch. v.
