and cannot be eradicated until the entire system is reconstructed with a steady determination to insure, as far as may be, the success of the suitor who has the better case, irrespective of the capacities of the lawyers employed on either side. At the present moment the Judges are engaged upon the effort to achieve this end-the mind of the country has been stirred to some extent by legal measures of revolutionary magnitude, and the time seems opportune for considering whether some sort of philosophical basis may not be laid for the work which the lawyers have in hand.

Starting with the fundamental principle that the merits of the suitor ought, as far as possible, to be made to prevail over professional skill, some obvious corollaries suggest themselves at once. The analogy, or rather the contrast, of our game of whist supplies one of the most important.

Maxim 1. Every suitor should be compelled to show his hand at the earliest possible stage of the contest.'

It is impossible to exaggerate the value of this maxim. Any method of investigation which ignores it must be bad; any method based upon it is sure to be tolerably good. If faithfully observed, it will almost suffice in itself to abolish the traditional uncertainty and perplexity of the law. And its truth seems as obvious as its importance. And yet it is a maxim which the existing methods of our Courts of Law almost wholly disregard. Nay, we suspect that there are some able lawyers, swayed by the habits of their lives, who would even at this day contend that no such rule should be admitted as the foundation of our legal procedure. But casting aside for the moment, at any rate, the theories and the practice of lawyers, something may perhaps be learned by carrying our minds back to patriarchal times and picturing to ourselves the wise though simple procedure by which the chief of a clan or the king of a primitive nation would administer ready justice as he sat in the gate to redress the wrongs of his people. His first step would be, as the first step of every tribunal ought to be, to ascertain exactly what the real matter in dispute was. He would call upon the complainant to state his grievance, and would make the alleged wrong-doer say at once how much of the accusation he admitted to be true, how far he was able to contradict the charge, and in what way he proposed to justify his own conduct. The king at the gate would insist on each of the parties to the contest showing his hand fully, and it would fare ill with the man who tried to hoodwink the sovereign or baffle his opponent by inventing falsehoods on the chance of not being found out. How such a judge would deal with litigants who proceeded on the approved methods

which lawyers have developed among civilised nations, may be best realised by imagining an actual dispute in which the parties (educated, let us suppose, some centuries in advance of their age) should adopt the devices which we are not ashamed to permit and to practise.

Let us suppose a people among whom flocks and herds are the principal currency: one herdsman, whom, in deference to modern phraseology, we will call the plaintiff, claims to be entitled, say to fifty sheep, which his neighbour (the defendant) has in his possession. The king calls upon the parties to state their cases. My case, Sire,' says the plaintiff, is, that this man has in his possession fifty sheep, which he has had and received for my use, or, if your Majesty does not understand these technical expressions, I will say, fifty sheep which, for some reason or other, he ought to give to me.' 6 Nothing of the sort,' answers the defendant. The fact is, your Majesty, that I never had these sheep in my possession at all. Besides that, I gave them back to this fellow before he made his complaint; and I may add that when I took the sheep I took them for myself, and there is no reason whatever why I should give them to the plaintiff.' 'What is the meaning of this jargon?' interposes the King. 'Sir Plaintiff, don't tell me that for some reason or other you ought to have the sheep; but tell me, and tell the defendant, too, what has happened to give you any claim to them; and then he will be able in his turn to tell me why he considers that he has a right to keep them. And you, defendant, don't stand there insulting your King with falsehoods; but tell me, and tell the plaintiff truly, whether you ever did have the sheep-whether you have them now in your fold, and how you make out that the plaintiff ought not to have them. If, instead of telling a plain true story, either of you tries to mystify me with jargon and lies, he shall have the bastinado for his pains.'

Somewhat humbled and alarmed, plaintiff and defendant restate their cases. The truth is,' my Lord, says the plaintiff, 'that the defendant and I both had cows which we desired to exchange for sheep, and the defendant was about to travel into a far country where many sheep could be obtained in return for a cow. I trusted him with fifty of my cows to exchange for me, and for his trouble I promised that I would let him take for himself half the sheep he could get for them, if he would give me the other half. He bartered my cows for three hundred sheep, and has only given me one hundred; I claim fifty more. I crave pardon for not having stated this plainly at first, but I was afraid that if I did so this wicked defendant might deny everything that

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I was not able to confirm out of the mouths of our neighbours; and therefore I thought it better not to show my hand or to let him know what I was going to prove against him.' 'I understand you now,' says the King; but never again come before me with a complaint without telling me at once what it is that you complain of. And you, defendant, say honestly how much of this story is true.' May it please your Majesty, it is all true, except that I do not admit that the bargain was what the plaintiff says it was. When I said just now that I never had the sheep, I did not mean that that was really true; but the place where I received them was a long way off, and I thought the plaintiff could not find anyone who saw me take them, or if he did, that he would have to reward him for coming here, and it seemed to me that I had a right to call upon the plaintiff to prove his case, and that if he could not do so I ought to escape.' 'Who has taught you these wicked tricks?' retorts the King; at your peril never again palm falsehoods upon me, because you hope you will not be found out. But what do you say the bargain was?' 'Well, my liege, I would rather not say. To make things sure, we employed a scribe who wrote it down and kept it for us. He is far off, but send for him and he will show you what it was.' Why should I do that,' says the King, if I can settle the question by your own admissions? If I find that you say one thing and the plaintiff says another, I will send for the writing; but first tell me, and tell me truly, whether you do not know that the plaintiff's account of it is true.' 'If your Majesty insists upon it,' replies the defendant, I remember very well that I was to give him half, and I have only given him one-third; but a learned doctor has told me that not even the King himself ought to make me answer such a question as that. I humbly submit that you ought to send for the writing, although I own there is no dispute between us as to what it contains.' 'Nonsense,' concludes the King, 'the learned doctor shall be expelled from my dominions for not knowing the difference between discovery and evidence, and you, defendant, shall give up the sheep without forcing the plaintiff to produce a writing to prove a bargain which you can't and don't deny. If you had had any doubt about the terms, I would have sent for the writing; as it is, it would only be causing needless delay and expense. And you shall give the plaintiff, for the trouble you have caused him, ten sheep more than the fifty which he claimed.'

The seeming puerility of this fable may be pardoned if we say that every word which we have put into the mouths of the imaginary plaintiff and defendant, including the crowning ab

surdity

surdity of the learned doctor, would be pronounced by an English Court of Law to be sound and right, or, at any rate, in accordance with accepted practice, and that the lay common sense which we have attributed to the King on his judgment-seat is in flagrant violation of some of the most cherished rules of our legal procedure. The grave question is, Which is right-common sense or the law? With all deference to lawyers, we think common sense must have the verdict.

The real difficulty, however, of reforming such abuses as we have indicated is in inducing the world at large to believe that such things can possibly be. Laymen know that a quarrel no sooner ripens into a law-suit than it becomes involved in a web of mystery which they think it hopeless to attempt to unravel; but it is very hard to get any one out of the profession to believe the strange things which are daily done within it. Illustrations such as we have given are not unnaturally assumed to be exaggerations bearing no relation to actual facts, and the surprise which ought perhaps to ripen into indignation often subsides into incredulity and fails to excite a genuine demand for reform. And yet the fiction we have sketched may be matched, and more than matched, by recurring experience. Let us place side by side with our patriarchal lawsuit a sketch, drawn from life, of a corresponding proceeding before an English tribunal.

We will suppose that the plaintiff has purchased goods which have been shipped from a foreign port, and is in possession of the bill of lading which entitles him to demand delivery of the goods. He presents the bill of lading, and for some reason, well or ill founded, delivery is refused. He brings his action for the wrong, and alleges that the bill of lading was duly presented and that the goods were nevertheless withheld. The real defence we will suppose to be, that the goods not being paid for, the seller claims the right to stop them in transitu, as it is called, which, under certain circumstances, the law allows him to do. The purchaser, however, denies that the circumstances of the case are such, in point of law, as would justify the stoppage, and the only question between the parties is, whether the stoppage was rightful or wrongful. The fact that the goods were stopped is known to both sides, and is in reality their common ground. In order to narrow the contest to the question really in dispute, the plaintiff calls upon the defendant to say on oath whether he denies or admits that the bill of lading was presented and that the goods were refused. If he admits it, there will be no occasion to incur the expense, and it may possibly be the difficulty, of proving what actually occurred. The defendant, like the herdsman in

our

our patriarchal fable, objects to being called upon to give any answer at all, knowing that if he does answer he can do nothing but admit the truth of the plaintiff's statement. A solemn discussion then ensues before a Judge to determine the preliminary point whether the plaintiff is at liberty to ask such a question. The plaintiff urges that it would be idle to force him to prove— certainly with much delay, perhaps at great expense-a matter about which both parties know there is no doubt at all. The defendant does not suggest that the allegation is untrue, but insists that it would be contrary to all rules of law to permit the plaintiff to put such a question as he proposes; and the Judge decides, and, according to the settled practice, cannot help deciding, that the defendant is right. The consequence is, that a jury is empanelled to try, and witnesses called to prove, what no one really questions, and all the cost and delay of a trial are incurred because there is a rule of law that in such a case a defendant must not be forced to admit what he knows to be true.

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But why, it may be asked, does a Judge pronounce a decision which leads to such mischievous absurdity? The answer is, because he has no choice. He is bound to follow the settled practice, and to say to a plaintiff in such a case something of this kind: You ought not to attempt to ask such a question. True it may be that the defendant's admission would relieve you from the burden of a trial-no small matter; true it is that the defendant may be trusted not to prejudice himself by an admission if he feels a shadow of a doubt on the subject. You may be right in saying that no one could possibly be injured by allowing such a question to be put, and that you will certainly suffer if I refuse to permit it. But you ought to know that there is a rule of law which forbids you to ask whether the thing presented was a bill of lading. No one can say whether it was a bill of lading or not except from its contents, and it is a rule of law that no question can be put as to the contents of a written document. You might ask if a bit of paper was presented, but that would do you no good. What you must do is to produce and verify the bill of lading at the trial, and prove that it was presented, and then you will gain the verdict. But,' remonstrates the plaintiff, why should I be put to all this trouble and expense? If the defendant and I were not agreed that this paper was the bill of lading, I allow that the only satisfactory way of settling the dispute would be by producing the paper itself; but where is the necessity for all this, if we are agreed-and why may not I compel him to say whether we are agreed on the point or 'There is a rule of law to the contrary' (the Judge is bound to reply), and your question must be disallowed.'

not?'