should it fail him. Nor should any party, as a general rule, be suffered to cross-examine his own witness. But this rule ought to be relaxed in cases of surprise and trick, as where a party has stumbled upon an adverse witness unknown to himself, and especially where means have been used to deceive him, either by the opposite party, or the witness himself.

15. As testimony at first hand from witnesses is alone to be taken, and never hearsay, so the best kind of evidence is always to be required; thus, if a bargain has been reduced to writing, it can be proved only by the written document; and all originals must be produced, and not copies or parole entries of their contents, unless the originals have been lost or destroyed, and without the procurement of the party seeking to prove their contents.

16. The law ought in all cases to encourage the reducing contracts to writing, by giving advantages in every instance to such proof, and by requiring it peremptorily in cases of any importance.

17. An opportunity should be afforded of registering all documents of importance, whether wills, or gifts, or contracts, or conveyances, or other muniments of title. Parties should be enabled to register every instrument, and to prove its contents by office copies, authenticated by the public officers, unless when any question turns upon the writing or appearance of the original, which should then be required to be produced. But either party should be entitled, at his own cost, to produce the original in cases where proof by an office copy is allowed. Parties should be induced to record documents by the law giving a preference to instruments so registered; and in cases of conveyance, the registration should be enforced, by giving posterior lenders, purchasers, or grantees, the prior claim, if their title has been first recorded.

18. In case of any miscarriage through the judge's fault at a trial, means should be afforded of reversing the decision, whether upon a question of evidence, or upon any direction given by the judge; and in case of manifest error in those who decide on the fact, a new trial should be allowed. But no relief should be given against the consequences of any oversight committed by the party or his advocate.

19. In all criminal cases a power of pardoning or partial remission of the sentence should be vested in the Executive Government; but this should be most cautiously and sparingly exercised, even on the application of persons unconnected with the proceeding, almost always under the advice of the Judge who tried the cause, never without fully consulting him.

20. Compensation should be made to a person tried and acquitted, unless where the acquittal was owing to technical mistake, or where there existed no doubt of the guilt, but the strict legal proof failed.

Such are the general principles which should govern the Code of Procedure, civil and criminal, in every civilised country, and by departing from which the penal regulations of any country will become defective. But the head of procedure cannot be kept wholly separate from the head of rights and wrongs, actions and crimes; because the course of legislation respecting these will in every case materially affect the course of procedure respecting them. Thus the provisions touching contracts, or conveyances, will materially tend to make the remedy under them more or less expeditious, more or less certain, more or less expensive. So the provisions respecting offences will tend to make the prosecution, the trial, and the conviction of offenders more or less expeditious and more or less certain. Every one knows how greatly the severity of a penal code tends to facilitate the escape of criminals, both by disinclining parties injured to complain and produce proof, by disinclining witnesses to disclose all they know, and by disinclining courts to convict.

The general principles of jurisprudence which we have now gone through are of universal application. It is even quite possible that the codes of all civilised nations should be constructed upon them, whatever be the difference of their governments, of their other institutions, of their religions, of their climates, of their characters, of their pursuits and occupations, of their foreign as well as domestic policy. There is no conceivable state of civilised society which would exclude their application, none in which the stability of the government and institutions of the country would not be promoted by their adoption, none in which the prosperity and happiness of

the people, as well as the security and ease of their rulers, would not be greatly augmented by the operation of a legislative system thus framed. It is possible that an absolute or oriental despotism should be supposed unable to exist in its full force when the judges were named for life, and all judicial proceedings were public and independent. But still, even in such a state, the judicial system which we have been describing as perfect might co-exist with the arbitrary power of the sovereign; he might be suffered by the constitution to treat individuals as he pleased, and to change the laws at his pleasure; and yet if the perfect system was allowed to act wherever he did not interpose his authority, the greatest benefit would accrue to all the orders of the community, and a great security be derived to the throne itself.

It must, however, be remarked, that in every country the laws have a tendency to become, in harmony with the circumstances of the state, accommodated to the form of its government, modified by the character and habits of the people, though in their turn they re-act upon the government and the people. Thus in monarchies the laws naturally tend to the descent of lands according to the rule of primogeniture; in republics they as naturally tend to a more equal distribution of real property. In aristocratic communities, land is apt to be regarded by the law differently from chattel interests. In both monarchies and aristocracies, there is a tendency to bestow privileges on particular classes, even in the ordinary transactions of commerce and of landed possessions. Governments have interfered in these and numberless other instances in the declaration of rights and remedies, as well as in the prevention or punishment of crimes, with a view to mould the laws according to the spirit of the political institutions, and to draw from the laws a support to those institutions. So the pursuits and character of the people have left their stamp upon the course of legislation; a mercantile nation's code differing from one wholly or almost wholly engaged in agriculture; a humane people giving its code a far milder aspect than the laws of a cruel and sanguinary nation. These modifications do not affect the soundness of the grand fundamental principles, nor even limit their possible application.

The history of Jurisprudence remains to be shortly considered.

In ancient Greece the materials of the study were exceedingly scanty. Sparta had no written laws; it was a part of the unnatural, absurd, and barbarous polity of Lycurgus - that is, of the early polity of which all the provisions are ascribed to him, its last collector and founder-to prohibit absolutely the reducing of the laws to writing. In Athens there were a considerable number of written laws; but as all their tribunals except the Areopagus were composed of great multitudes rather than presided over by benches of judges, the force of the law, except in extreme cases, could be but feeble, its application quite uncertain and precarious, its study as a system wholly impossible. We accordingly never perceive in the Greek writers, whether orators, historians, or poets, any thing like a reference to Jurisprudence as a subject of learning, or to the occupation of the lawyer as one for which men were qualified by previous training, except only in the rhetorical art, or indeed to the profession of an advocate as separated from the general vocation of an orator, that is, a statesman, a political adventurer.

The Romans, somewhat late in the Republic, applied themselves to Jurisprudence as a study; but they had much earlier taken pains to provide the materials of this learning. At the beginning of the fourth century after the foundation of the city, the old laws were reduced to writing by a Supreme Council appointed for the purpose, together with such additions as they deemed expedient, chiefly borrowed from the Greek laws and customs. Ten tables were thus formed, afterwards increased to twelve, and were the foundation of the Roman law. But a fruitful source of legal enactments was provided in the single seated justice (to use Mr. Bentham's expression) of the Roman courts. The prætors, the greatest judicial officers, sate alone; one for the city, the other for the country districts: and upon entering into their annual functions, they promulgated an edict, or body of the rules which they intended to follow in deciding causes. These edicts in a great measure consisted of what were termed translatitious provisions, or those which were taken from the edicts of the preceding magistrates, and were thus handed down from one

age to another. In part, however, they embraced new provisions adapted to the changing circumstances of society. The lawyers came by degrees to regard those edicts as so important that they wrote commentaries upon them; and the science of Jurisprudence was thus founded. It seems exceedingly difficult, considering the multitude of those works, of the edicts, of the senate's decrees or Senatus Consulta, of the people's decrees voting in tribes, or Plebiscita, to understand Cicero's boast in answer to some one who taunted him with his imperfect legal knowledge. He retorted by threatening if he heard such jibes repeated by technical men, that he would learn the law in a month when he happened to be unemployed, and so beat them all on their own ground. It is certain that in after times the number of the law books had enormously increased, and to their massive volumes and inextricable confusion we owe the great work undertaken by the emperors in the fifth and sixth centuries of our æra, when the works on Jurisprudence were said to have become "the load of many camels" (multorum camelorum onus), and yet the people were so ignorant of the subject, that if the name of any great jurisconsult was mentioned in society, it was supposed to designate some uncommon fish. Theodosius, in 435, caused the first Digest, called after him the Theodosian Code, to be made; and Justinian, in 530, commissioned Tribonian and other lawyers to prepare the Pandects, or an abstract of the whole civil law in fifty books, arranged under titles, and consisting of dicta taken from above fifty of the text writers. Ten years were allowed them to finish this task; they accomplished it in three; and a few weeks before the promulgation of the Digest thus formed, in 533, they published the Institutes, a more general and popular treatise on the whole law, in four books, remarkable for the admirable arrangement of its parts, the symmetry of the whole work, and the great clearness of the language in which the entire law is explained. The Emperor gave also to the world a Code of imperial law subsequent to the Digest: and these, with the Authenticæ or Novels, subsequently added from the Imperial rescripts, or answers of emperors to cases laid before them, but which under that most arbitrary government had the full force of