called. It is a blot which adds much to the cost of litigation, which becomes very often out of all proportion to the amount at stake. A mere multiplication of witnesses does not add strength to the case of a litigant, and over and over again it may be seen that if two or three witnesses support a case efficiently it is not improved by half-a-dozen more. Indeed, there is a positive danger in a large number of witnesses, since among many it is seldom that one or two weak vessels are not to be found, who may actually detract from the force of the evidence of previous witnesses. In actions which involve some technical skill this multiplication of evidence is most conspicuous. It is a weakness in the present system which can only be checked by the judges before whom cases are tried. To leave the propriety of calling or having at the trial a certain number of witnesses to the official known as the taxing officer is to throw on him a responsibility which it is impossible for him to discharge in many cases as well as the judge who has tried the case. Where a judge considers that a case has been overloaded with evidence, it is very desirable that he should state this view in court, and give directions accordingly in regard to costs. If this practice were adopted, a practical step towards lessening the costs of litigation would have been taken without in any way diminishing the efficiency of modern trials.

In regard to affidavits there is yet another observation of a general kind to be made. The time appears to have arrived when, in the course of litigation, their number might be diminished. They are so common as not only to be of no more value than unsworn statements, but also,

by this very commonness, they detract from the solemnity of oaths in general. For example, in the course of litigation each party has to make what is technically called an affidavit of documents. This affidavit is simply a common form with two schedules at the end which are filled up, and then the litigant is sworn to the affidavit before a commissioner. But a statement unsworn, giving in similar form the details of the documents relating to the case, would be as satisfactory. If, at the present time, a document is omitted, and the opposite party discovers it, an application is made for a further and better affidavit. But the person who has made the affidavit is no worse for the omission. We cite this particular detail of practice merely as an example. The general proposition which we state is that affidavits should be diminished, and should be used, not as formal pieces of legal machinery, but only when it is absolutely desirable and necessary in the interests of justice that a statement should be made upon oath.

A change of this kind would be entirely in harmony with what may be termed the businesslike despatch of litigation, under the influence of which documents are now often admitted at trials without strict technical proof, the main desire of the court and the litigants being that a conclusion should be reached with as little of technicality and legal obstruction as possible.

But it is in the Criminal Evidence Act of 1898 that we see this modern tendency in regard to evidence more clearly reflected than in any other statute or rule or practice of recent years. Most persons think of it, and con

sider it, purely from a practical point of view. To the historical observer, however, it will always be of equal interest, since it is the last, and most important, alteration in one branch of English law, the changes in which we are able to watch with tolerable certainty from century to century.

CHAPTER VIII.

THE HISTORY OF BANKRUPTCY LEGISLATION.

THE history of English bankruptcy legislation must always have a deeper interest for those who are not lawyers, than that which usually belongs to purely legal questions. For it shows with considerable vividness some commercial ideas of different periods of our history, as well as the difficulty of reducing effectually into practice moral and legal theories which in themselves are clear enough. Among the many details and conflicts of procedure which characterise the course of English bankruptcy legislation, some main principles are apparent. These are that there should be a full and rateable distribution of a bankrupt's property among his creditors, that on his discharge a bankrupt should be free from existing liabilities, that property of which a bankrupt was reputed owner should be realised for the benefit of his creditors, and that a bankrupt should be allowed to make a composition with his creditors. These will appear as we follow the course of bankruptcy law, which is more easily traced than that of other branches of our jurisprudence, which depend much on case law. From the beginning of its existence in this country bankruptcy law has been formulated in the shape of a rude legislative code, which has from time to time been altered or enlarged by Parliament as defects of principle or procedure became

apparent, and new legal and social theories came to the top. Nor for the beginning of the history of the law of bankruptcy—an exception as it is to the ordinary law of debtor and creditor-is it necessary to go back to those now distant periods in which legal historians have often to seek for the springs of our streams of law and equity. It appears almost abruptly in the Statute Book, called for by the growing needs of the mercantile community. Commerce, as it is one of the first causes of the prosperity of a people, was also the main factor in the creation of a bankruptcy law.

It may be that, like some of the origins of English maritime law, the theory of a bankruptcy law came from the Mediterranean, for in the trading towns of medieval Italy a system of bankruptcy law existed from an early period, and before Benevenuto Straccha, a learned lawyer of Ancona, wrote a treatise on the subject in 1584, a bankruptcy law of comparatively an elaborate character must have been in force. Coke places the first bankruptcy statute (a) in England in the reign of Edward III. in the year 1350, and takes a patriotic pride in regarding bankruptcy as a practice introduced by the Lombards, and one not indigenous in England. As a matter of fact, however, this was not in any sense a bankruptcy Act; for it does no more than make the company of Lombards in London liable for the debts of any other Lombard who quitted the country without paying his creditors. The first Bankruptcy Act (b) is in fact to be found in the reign of Henry VIII., when it is to be feared that the

(a) 25 Edw. 3, c. 23.

(b) 31 & 35 Hen. 8, c. 4 (1542).