(d)" THE principal defects seem to be,

"1. THE want of a complete discovery by the oath of the parties. This each of them is now entitled to have, by going through the expense and circuity of a court of equity, and therefore it is sometimes had by consent, even in the courts of law. How far such a mode of compulsive exami nation is agreeable to the rights of mankind, and

If still, the North is to be distracted by almost-perpetual wars, or the South desolated in horrid traffic for human flesh: if ftill, myriads are to be massacred for the silver and the gold of the West, or the spices and the gems of the East—in the mean time may United America, as a common friend, cultivate, as much as she possibly can, the felicity of mankind. May her plough and her sail be blessings to nations. May it be her delightful employment, to undo the heavy burthens—to deal bread to the hungry--to cover the naked -to satisfy the afflicted soul"

66

This tenor of conduct was solemnly prescribed to a people formerly, with these gracious promises annexed-"Thy righteousness shall go before theethe glory of the Lord shall be thy rereward——he shall satisfy thy soul—— and thou shalt raise up the foundations of many generations."

"Reputation will vanish," says a great historian," and power must naturally decline, when men grow wanton with wealth, and employ the gifts of Providence for other purposes than they were designed."

ought to be introduced in any country, may be matter of curious discussion, but is foreign to our present inquiries. It has long been introduced and established in our courts of equity, not to mention the civil law courts: and it seems the height of judicial absurdity, that in the same cause between the same parties, in the examination of the same facts, a discovery by the oath of the parties should be permitted on one side of Westminster-hall, and denied on the other; or that the judges of one and the same court should be bound by law to reject such a species of evidence, if attempted on a trial at bar, but, when sitting the next day as a court of equity, should be obliged to hear such examination read, and to found their decrees upon it. In short, within the same country, governed by the same laws, such a mode of inquiry should be universally admitted, or else universally rejected.

"2. A SECOND defect is of a nature somewhat similar to the first: the want of a compulsive power for the production of books and papers belonging to the parties. In the hands of third persons they can generally be obtained by rule of court, or by adding a clause of requisition to the writ of subpana, which is then called a subpœna duces tecum. But, in mercantile transactions especially, the sight of the party's own books is frequently decisive: as, the day-book of a trader, where the transaction was ·

recently entered, as really understood at the time; though subsequent events may tempt him to give it a different colour. And, as this evidence may be finally obtained, and produced on a trial at law, by the circuitous course of filing a bill in equity, the want of an original power for the same purposes in the courts of law is liable to the same observations as were made on the preceding article.

3. ANOTHER want is that of powers to examine witnesses abroad, and to receive their depositions in writing, where the witnesses reside, and especially when the cause of action arises in a foreign country. To which may be added the power of examining witnesses that are aged, or going abroad, upon interrogatories de bene esse; to be read in evidence, if the trial should be deferred till after their death or departure, but otherwise to be totally suppressed. Both these are now very frequently effected by mutual consent, if the parties are open and candid; and they may also be done indirectly at any time, through the channel of a court of equity; but such a practice has never yet been directly adopted as the rule of a court of law. Yet where the cause of action arises in India, and a suit is brought thereupon in any of the king's courts at Westminster, the court may issue a commission to

*

See page. 75.

examine witnesses upon the spot, and transmit the depositions to England.†

"4. THE administration of justice should not only be chaste, but should not even be suspected. A jury coming from the neighbourhood is in some respects a great advantage; but is often liable to strong objections: especially in small jurisdictions, as in cities which are counties of themselves, and such where assizes are but seldom holden; or where the question in dispute has an extensive local tendency; where a cry has been raised, and the passions of the multitude been inflamed; or where one of the parties is popular, and the other a stranger or obnoxious. It is true that if a whole county is interested in the question to be tried, the trial by the rule of law must be in some adjoining county: but, as there may be a strict interest so minute as not to occasion any bias, so there may be the strongest bias without any pecuniary interest. In all these cases, to summon a jury, labouring under local prejudices, is laying a snare for their consciences and, though they should have virtue and vigour of mind sufficient to keep them upright, the parties will grow suspicious, and resort, under various pretences, to another mode of trial. The courts of law will therefore in transitory actions

Stat. 13. Geo. III. c. 63.

+ Stra. 177.

very often change the venue, or county wherein the cause is to be tried: * but in local actions, though they sometimes do it indirectly and by mutual consent, yet to effect it directly and absolutely, the parties are driven to a court of equity; where, upon making out a proper case, it is done upon the ground of being necessary to a fair, impartial, and satisfactory trial. † Black. 381, 382, 383, 384.

THE learned judge has in the preceding enumeration omitted one provision of the utmost importance. That is the selection of jurymen, not only in cases of "local prejudices" mentioned by the judge, but in all cases, and with such guards, as always to secure impartial juries.

(e) A PEOPLE, to preserve their liberty must be of a bold and penetrating spirit: not only resentful of injuries when felt, and resolute in redressing them, but acute in discovering their approach, and active in preventing them. Caution is as necessary as

* See pag. 294.

"This among a number of other instances, was the case of the issues directed by the house of lords in the cause between the duke of Devonshire and the miners of the county of Derby, A. D. 1762.