Erskine was brought down special, and appears to have yielded too much to his anxieties as an advocate and his feelings as a man. The trial came on at East Grinstead, at the Sussex Spring Assizes, 1786, before Mr. Justice Ashurst. The reader when he bears in mind that the prisoner's counsel could not address the jury, and that death was certain to follow conviction, will be startled with us at the glowing language and angry epithets of the speech for the prosecution:

"I beseech you to discharge from your minds every thing you have heard on the subject, and might add too every thing that you have seen, for I am told this wicked and unfortunate wretch has been this morning led about the streets for the benefit of air, and may probably have excited your compassion. I have no objection that you should compassionate him; a man is more an object of compassion because he is an object of justice; a man is more an object of pity because his crimes are objects of horror."

After eulogizing her father with much art as an honourable officer, and enhancing their pity for the sufferer as one not of a strong temperament of mind, he goes on to heighten the sympathy of his hearers by the following portrait :

"When she is attentively observed by you, you will probably make this remark, that I confess I made myself upon seeing her, that if you could conceive a painter of the finest genius to be desirous of painting the character of artless simplicity and innocence, he would fix upon the countenance and figure of Miss Wade. What a venial offence (he added parenthetically,) is even murder compared with that with which the prisoner stands charged."

"It seems at first view, and has often struck me as a very great hardship, that the prisoner's counsel cannot make those observations which in the commonest civil law action every man's counsel is enabled to make for him, but the law is much wiser than me or any other individual. Custom comes to the protection of the prisoner, and imposes as a duty upon those who prosecute that which perhaps the law does not enforce, viz. that with whatever strength, with whatever clearness, with whatever conclusion the evidence on the part of the prosecution shall appear to day, and whatever art and ingenuity may be employed to defeat the ends of justice, I shall, I can

make no reply, If I should see the strength of my evidence as clear as the sun at noontide, and if I should see the weakness of any observations, on the effect of any cross-examination of this young lady, so that I might drag him to justice by the power of your understanding with the aid of the communication I could give it, I shall be silent as the grave."

The advocate then draws a highly coloured sketch of the facts, and proceeds, in a spirit not to be commended, to influence the passions of the jury and insult the prisoner.

"If there is any probability in favour of the prisoner at the bar, in God's name let him have it. But there is no probability in his favour, none that any reasonable mind can for a moment entertain; for let me ask you this question, whether it be consistent with any thing you ever saw, heard, or read of, that a young lady of hitherto chaste and virtuous life, artless, simple, and innocent in her manners, should all of a sudden go out on a tempestuous night-leave her father's house, not to throw herself into the arms of a lover, who had addressed her and endeavoured to seduce her, but into the arms of a stranger with nothing to recommend him, with nothing upon earth to captivate or seduce the fancy? It is repugnant to reason to believe it—it is a thing incredible, that the most viciously disposed woman could go into the arms of the squalid wretch before you! I do not mean to insult him by the expression; his wickedness renders him an object of compassion. But if he is not to be insulted a virtuous, innocent, miserable, ruined lady is not to pass unredressed; nor the breach of God's laws and the country's to pass unrevenged. If he dies he suffers less than her, who lives. Oh fie!"

The phrase used by Erskine might have have been echoed back by the squalid wretch at being thus designated.

Fearful that startling improbabilities might be disclosed by his client's imbecility of mind, he concluded with a threat:

"It is a solemn and an unpleasant duty. You are humane I have no doubt, and I am glad you are so. Those who are not humane cannot be just. Justice is all I ask at your hands. If in your consciences you believe that the prisoner at the bar did commit this offence, so shocking to the individual and repugnant to all the principles of justice, you are bound in duty to God and to your country to convict him. If you can go home to night and satisfy yourselves that this young lady either has not been violated in point of fact, or that, having been so, it has been with her own consent; if you can per

suade yourselves of that absurd and improbable proposition, after you shall have heard the evidence, I shall not call your mercy in question; it is a matter which will rest with your own consciences."

The jury withstood this elaborate assault. After a long examination of the unhappy young woman, conducted by Erskine with his accustomed skill, they remained unconvinced that she had resisted to the utmost of her strength. They consulted together for half an hour, and then, after stating their scruples to the court, and being informed that there was no middle course, reluctantly returned a verdict of acquittal. (To be continued in the next Number.)

ART. III.-FORM OF MORTGAGES.

It is obvious that the present mode in which lands in this country are charged or mortgaged is anomalous and inconvenient. The ancient system of a term of years, with a proviso for cesser of the term on payment of the money, was correct in theory, but it proved insufficient in practice and is now exploded. The usual course.is now to convey the fee simple to the lender and at the same time to give him a power of sale in default of payment of the debt; and this mode, so far as regards the power of sale, has been found to answer well. It has saved many estates from the costs of a Chancery suit, and has given rise to very few disputes or questions: it is, indeed, remarkable how seldom the power of sale in a mortgage has either directly or indirectly engaged the attention of the Courts. But the vesting of the fee in the lender is a clumsy procedure, and often occasions great inconvenience and expense.

In a Court of Law, the lender, though he may know nothing of the property, is deemed the absolute owner, but still the real state of the case has compelled the admission that payment of rent to the mortgagor is a good payment until notice of the mortgage be given to the tenant. But a mortgagor is, as it were, a stranger to his own property; if he grants a lease and then mortgages, he cannot distrain for the

rent nor otherwise enforce payment of it; for though a tenant cannot deny his landlord's title, he may show that it has ceased.

In Chancery the real situation and intention of the parties is considered, and the mortgagee is regarded only as the possessor of the title deeds, with a power to make the estate his own, if the money remains unpaid.

Now this state of things is a reproach to the law, and we are confident it is one which need not exist; for the doctrine of uses, the steam power of our system, supplies an easy remedy. This doctrine, with beautiful precision enables us to give to a mortgagee exactly what is required for his safety, and at the same time the mortgagor may have the present use of the property. We propose, in short, to give to the mortgagee and to his executors within twenty-one years after his death a power to appoint the premises with a proviso for cesser of such power on payment of the money. This power will of course give to the mortgagee complete and absolute control over the property if he should require it, but in the mean time the mortgagor will remain the owner as he ought. In Jeremy Bentham's scheme for a general registry he would, we believe, on his plan of the country, have had mortgagees represented by blots,—and appropriately enough, for a mortgage in fee cannot be removed without trouble; but the limitation which we have ventured to propose might be better likened to a net which incloses and secures, but may easily be removed.

We will now consider more minutely the advantages which would result from this mode of limitation.

The mortgagor, so long as he paid the interest and until the principal money was required, would remain in possession of all his rights as owner of the land; he would be within rules, but still he would have life and powers of acting of which he is wholly deprived by a conveyance in fee simple.

When he paid off the mortgage debt, no reconveyance would be required; the power of the mortgagee might be made to cease by a simple receipt. This would be very important in practice, and it would save much expense. In case of the death of the mortgagee there would be no inquiry as to his heir at law or devisee of mortgaged estates; the parties to receive the

money, his personal representatives, would be competent to release.

The personal representatives of a mortgagee alone would be competent as well to transfer as release a mortgage; and thus the numerous and perplexing questions which arise, whether mortgaged estates do or do not pass by a devise, would be at an end.

The mortgagee might easily invest himself with the legal estate if he wished, but that would be seldom necessary; for he might sell the estate and appoint it at once to the purchaser.

Of course, if the mortgagor made a lease or other estate after the mortgage, it would be divested by an execution of the power vested in the mortgagee; and the grantee might be evicted by the mortgagee, like a tenant who comes in after a mortgage in fee.

But we incline to think that it would be better in most cases to give the mortgagor, by the mortgage deed, a qualified power to lease; for if without such power he makes a lease after the mortgage, and the mortgagee subsequently wishes to enter into possession of the premises, and the tenant refuses to attorn to him, he, the mortgagee, cannot enforce payment of the rent or otherwise proceed against the tenant, except by bringing ejectment. When the mortgagor occupies any part of the premises, we recommend that there should be an agreement to hold the same as tenant at a rent not less than the full annual value of the premises. In some cases where the mortgagor is in possession, a power to distrain is of the first importance, and that can only be effectually had against assignees under a bankruptcy by the mortgagor being actual tenant to the mortgagee at a fixed rent. It is certainly doubtful whether a mere power to distrain given by a mortgagor can be exercised against his assignees'.

The numerous questions which have within a few years been discussed in our courts relative to tenants and mortgagees show the importance of placing their respective rights on a clear footing; and we think it only just that a tenancy from

1 See 4 Mees. & Wels. 699, 702.