achievements seem almost to have effaced the memory of his enormous private crimes, was saved from the punishment he so richly deserved, by the law of evidence. The system which preserved him has been transmitted to us in all its antique proportions. And the committee of the house, which found so much to censure and condemn in the law on this subject, as it was then laid down, would find scope for almost the same animadversions at this day.

It is not our intention, however, to discuss with Bentham "the rationale" of the law of evidence. Any one who desires to carp or to cavil at "the perfection of human reason," will find the work done to his hands in the five octavos of the English philosopher. It was rather our intention, in a few paragraphs, to speak of the different treatises which our libraries possess on this fundamental branch of the law, without a thorough knowledge of which no one can pretend to be an accurate, or, which is quite as important, a ready lawyer.

Phillips's treatise, a clear and simple one, has been fairly swamped - drowned out by the notes of judge Cowen. This last edition is a huge collection of all the cases decided in every part of this branch of the law. But such is the arrangement; so constantly have you to turn from text to notes, and from notes back again to text, so little is order preserved, that we cannot consider it by any means so valuable as it might have been made. It is necessary to the library. But it is a necessary evil. It proves very conclusively the great learning of the judge who prepared it. But it is not arranged so as to be by any means a convenient work of reference. What you want you may safely swear is there. It is within a few inches of your nose: but how to find it?

Mr. Greenleaf's treatise is a very valuable one, and breathes throughout the "lucidus ordo," in which judge

Cowen's work is so deficient. Besides being most manifestly the work of an accomplished common law scholar, it is imbued with that love of the civil law which Mr. Justice Story has done so much to implant among us, and which, by carrying us back to the fountains of jurisprudence, elevates, purifies, and strengthens, the legal reasoning. Mr. Greenleaf's treatise is an elegant work; a delightful one for the student, extremely valuable for the general reader, and entirely adequate as a guide to the general principles of the system. But it does not, as is apparent from its size alone, it does not and cannot pretend to be a compilation of the entire law. Many cases are omitted, or merely noticed by the titles in such a way as to impose a further examination on the searcher.

Mr. Starkie's treatise, however, is what judge Cowen's purports to be a collection of the whole body of the law. on the subject. And the arrangement, moreover, is precisely adapted to this end. It is arranged under heads which answer to the subjects of litigation, Trover, Bills of Exchange, Slander, Libel, etc. etc., and thus forms an entire treatise on the law of nisi prius. It is, in truth, what Buller's book was in his day, together with what Greenleaf's is in ours. It contains the general principles, together with the application to each particular subject.

It is very true that there are some heads embraced in it, of no value to the American lawyer. But this is a secondary objection. If it contains something that we do not want, it certainly holds every thing that we do, and arranged in such way that it can readily be found.

We consider every new edition of it, therefore, an acquisition to the library.

This one before us is full of proofs of Mr. Gerhard's industry and research. The American cases, of which it contains a very great additional number, are generally cited not merely by their titles, a very insufficient and

unsatisfactory mode, but by a brief abstract of the decision (for which a few words is often enough), stating its purport, and which is generally sufficient to show the examiner whether it is desirable to turn to the case itself or not. Of Mr. Gerhard's own notes, which show great industry and research, we would particularly call attention to those on Declarations as a part of the Res Gestæ, Book Entries with Oath, Account Render, and Attorney.

There is no branch of the law which more frequently exercises the practitioner's mind than the one we are now considering. The great majority of demands may be resolved into a few large classes, where the right is very nearly similar. But the means of establishing that right are of course extremely different.

"What can you

prove?" and "How can you prove it?" are the two inevitable questions of the lawyer to the client. The result of the suit constantly depends, not on the real right between the parties, but the mode of establishing that right; and we every day find lacuna, where the principle is not established, or where it has been settled both ways. For instance, this case came recently under our observation: A man marries, and has daughters; his wife dies. He then lives with another woman, and has several children, one of whom is a son. They separate, after years of cohabitation - he declaring that there was never any marriage or contract of marriage between them.

comes lunatic, and among his papers is found a letter from the female, admitting repeatedly and distinctly that she was his mistress, and that her children were illegitimate. A reference to a master is ordered by the court of chancery, to report a committee of his estate. The committeeship is claimed by the son of the second bed, on the ground of his being the eldest male heir. This is resisted, on the ground of his alleged illegitimacy. Query, is the mother's letter evidence, or must she be called? It will

be found an open point. In Rex v. Branley, (6 T. R. 330,) the declarations of living persons were admitted in matters of pedigree; while all the text-books speak of the declarations of deceased persons only. In Jackson v. Cowles, (8 T. R. 128,) similar evidence was admitted. But judge Cowen, in his notes, (Vol. II. p. 618,) intimates a doubt. Here is a question of legitimacy, property, and character involved, resting entirely on a rule of evidence.

Take another case from the books. The English statute of frauds requires the agreement to be in writing, and under this it was held, both in England and generally in this country, that a consideration must be contained in the agreement. It was also held, however, not to be necessary to set forth the consideration with any particular fullness or accuracy; that it was sufficient, if by inference or construction it could be made out; it was held enough, in one case, if it could "be spelt out." The revisers of the New York statutes, in 1830, quite unnecessarily altered the phraseology of this act, and declared that, in the specified instances, "the agreement should be void, unless such agreement, or some note or memorandum thereof, expressing the consideration, be in writing." Upon this, the supreme court of the state of New York held, in Parker v. Willson, (15 Wend. 343,) that the consideration could no longer be inferred, but that it must be distinctly expressed. They have now, in Douglas v. Howland, (24 Wend. 35,) retraced their steps, and have fallen back upon the old rule of the English law, holding the New York statute to require no additional strictness. Independently of the propriety of standing in "the ancient paths," the latter is doubtless the wiser decision.

So fluctuates the law under the influence of time, modified opinion, advancing civilization, changing habits, and the hardship of individual cases.

A very interesting inquiry might be made into the ex

The English or the

pediency of any statute of frauds. American judge does not seek to do justice in the particular case before him. He only endeavors to apply a rule which he is taught to believe will, as a general thing, in the great majority of cases, do justice. In this respect, the object of the English judge may be considered as very inferior to that of some judicial officers, whom he would otherwise be disposed to suspend naso adunco.

The Mussulman judge, as we understand the matter, is embarrassed by no rules of evidence, and very few rules of law. He does not trouble himself with the question whether the promises are in writing or oral; whether the witness can gain or lose by his decision. He endeavors to do right between the parties.

The English judge is the mere organ of a system. He may he constantly must perceive that he is the agent of fraud; that his decision cheats an honest man and benefits a knave. But he cannot avoid it. An inexorable destiny, precedent, urges him on.

If this be true, we should certainly be careful to see that these inflexible rules are in the main wise. And an inquiry into the statute of frauds would necessarily lead to an inquiry into the whole system of evidence. In the bill introduced into the New York legislature last winter, drawn by Mr. Field, the objection of interest was entirely done away. And we see it stated that lord Denman has recently introduced a bill into parliament, to the same purport. Yet the objection of interest can be, as a general rule, much more easily obviated in practice than those difficulties growing out of the statute of frauds. In New York, especially, (since the case of Lake v. Auburn, 17 Wend. 18, authorizing the tender of an indemnity to the witness against the demand or claim which would otherwise disqualify him,) there need be no frequent risk of the loss of testimony on this score. We should be glad if any