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ART. II. THE SMYTH CASE.

To the unreflecting this case only presents the story of an attempt to obtain possession of an estate, made by a person whose folly being almost as signal as his knavery, rendered success from the first nearly impossible. But some important considerations arise from the course of the proceedings when contemplated with attention.

The first remark that occurs, relates to the beneficial effects of the late change in the Law of Evidence. The case could hardly have succeeded; but it would have been disproved with far greater difficulty, and by a much longer investigation, had it been launched upon the testimony of the respectable persons, who swore to their belief in the handwriting of witnesses, and in the authenticity of documents. The impostor's own evidence at once made an end of his case, we ought rather to say, ought to have made an end of it, for the second remark we have to make relates to that.

The cross examination left, indeed, no doubt whatever; but the examination in chief was quite sufficient. No one who reads it, no one who heard it, could doubt that the man was lying, and lying without the most ordinary caution to conceal his falsehood, or avoid contradictions. Now, we cannot conceive how all that he said when interrogated by his own Counsel, could have been taken down in writing by his attorney, without convincing that attorney of the kind of person he had to deal with, and the kind of written evidence he was producing. No one who ever saw a brief can doubt, that the Plaintiff's contained the parts of the man's story which were the most free from notorious falsehoods, and that no little amount of these had been rejected when the selection was made, and the brief prepared. But suppose the story which he told in Court was all he told the attorney, he was at least seen and conversed with; and no person of common discernment could have been satisfied of his honesty after having an interview, and hearing his account of himself. Yet, suppose further that his demeanour in private was such as to excite none of the suspicions

which arose in Court at every stage of his examination, the falsehood of his story was clear if in any one of its parts it failed. Now in one part it failed because he could only reconcile it with a parish register which was produced, by saying that the book had been tampered with. This charge against a respectable clergyman was at once repelled and by whom? By the declaration of the attorney himself that it was groundless. It is possible, no doubt, that this gentleman never had heard his client charge the register with falsification. But then he will have to explain how his attention was directed to the point; at what time he first heard of it; how Smyth out of Court explained the discrepancy; what answer he gave to the remark which must have been made by the attorney that the case was defeated by the document; what sifting was then made of the other documentary evidence, to see that no forgery had been committed. It is possible, and barely possible, that all the communication he had with his client, all the stories heard from him, all the papers shown by him, never excited in his mind any suspicion that the whole case was one mass of perjury and forgery-never made him suspect any one part of it. This is barely possible; but if it be not also true, there is no excuse for the gentleman, because any suspicion must have led to such inquiry as would at once have shown what the case was made of.

Nothing can be more just than the position that neither counsel nor attorney is bound privately to try the cause before undertaking to defend it in Court. But it is equally certain, that no attorney is bound to bring forward a case supported by documents which he suspects of being forged. Once his suspicions are awakened, he is bound to make such inquiry as may satisfy him that he is wrong. As to perjury, the same remark may be made, but with this difference, that more than grave suspicion must exist, and that a case is not to be abandoned, if apparently sound in other parts, because the truth of some of the statements appears to fail; it being unfortunately too often the course of unprincipled parties to support a well-founded case by false testimony.

required than professional men generally use, in beginning and in continuing both suits and defences. One abuse is well known to exist; there are counsel who give, much too lightly, opinions whereby attornies are enabled to persuade their clients that they have a fair chance of succeeding. But in the great majority of instances the fault is in the statement laid before them; and that is the attorney's work. If the judge before whom a case comes that plainly ought never to have been brought, or a defence is made where manifestly there never should have been any resistance to the demand, were to express his sense of the attorney's conduct, which has caused this grievous injury both to the parties and to the public; if he were to mark his opinion of the individual, naming him distinctly in open court, it would be dangerous for that man again to fall under a like censure, and others would be deterred by his example, while he was restrained if not reformed by experience.

The remark is now very current, that as we have been reforming the Law, so should we now reform the lawyers also. The discipline exercised on some Circuits is exceedingly wholesome in this respect; but unfortunately it is confined chiefly to matters of professional etiquette. The Benchers of the Inns of Court have no power without exceeding their proper authority. The Judges ought to exercise a stricter supervision; but few of the professional man's misdeeds come before them. If there were a Minister of Justice, it is certain that he would be able to assist more effectually in purifying all branches of the Profession, provided he were armed with due authority; authority to be exercised in concert with the Judges and the Heads of the Inns.

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SAVIGNY has said that a domain of science like-Law, cultivated by the unbroken exertions of many ages, is for the present time a rich inheritance. There is not merely the mass of truths accomplished, but the efforts of scientific minds, all the attempts of our predecessors, whether they have been fruitful or failures, are either guides or warnings; and thus we are enabled to labour with the united strength of the ages that are past. Were we, through indifference or presumption, to neglect this natural advantage of our position, and to abandon to chance the influence which it ought to exercise over us, then should we throw away an inestimable advantage; the indissoluble substance of true science, the community of scientific convictions, and the living progress, without which that community would degenerate into a dead letter.3

Thus, although there is more to censure in the writings of Hobbes than we shall find in those of any other philosopher who has written so much and so well, it is impossible to deny the importance of his place in the History of Jurisprudence. Even by the very opposition which his paradoxes excited progress was accelerated. Against Hobbes, Harrington defended liberty, and Clarendon the Church; against him

For Nos. I. and II. see vol. xvi. pp. 59. and 268.; for No. III. see vol. xvii. p. 105.; for Nos. IV. and V. see vol. xviii. pp. 91. and 249. We purpose to continue this series of articles upon the Development of Jurisprudence. A great impulse has recently been given to legal reform in England. It may therefore prove not unacceptable for our readers to peruse an historical review of the great writers who have scientifically cultivated Law, combined with a sketch of its internal development.

2 WORKS: - Elementa Philosophica De Cive: Paris, 1642, 4to. Leviathan: London, 1651, fol. Human Nature; or the Fundamental Elements of Politics: London, 1650, 12mo. De Corpore Politico; or the Elements of Law, Moral and Political: London, 1639, 12mo. Moral and Political Works: London, 1750, fol. Complete Works, English and Latin, edited by Sir W. Molesworth; 16 vols. 8vo.: London, 1839-1845.

Cudworth insisted upon the natural distinction between right and wrong; whilst Cumberland, Shaftesbury, Clarke, Butler, and Hutcheson are all arrayed in philosophical antagonism against the author of the Leviathan; all are warned by his errors, and even in opposition benefit by his genius and industry. But though Hobbes be condemned for having in his political system represented man as an untameable beast of prey, and government the strong chain by which man is kept from mischief, his doctrines are not all error; succeeding writers have derived much assistance from his powers of analysis; whilst his idea that man is by nature solitary and selfish, that the social union is entirely an interested league, has been expanded into the doctrine of Utility; and though in some instances pushed too far, hss been applied with success to the theory of Punishment by Bentham.

Thomas Hobbes,- one of the greatest intellects of the seventeenth century, and deservedly ranked with those eminent persons, Bacon, Des Cartes, and Grotius, the fathers of modern philosophy - was born at Malmesbury in Wiltshire, on the 5th of April, 1588. At school an indifferent classical scholar, in 1603 he proceeded to Magdalen Hall, Oxford; and, on the recommendation of the Principal of the College, was in 1608 taken into the family of Lord Hardwicke, afterwards Earl of Devonshire, as tutor to his eldest son. With him he made the grand tour; and in foreign society added the study of the Belles Lettres to the philosophy of Aristotle. On his return to England with the young Lord Cavendish, he speedily became known to persons of the highest talents and position there. Bacon is said to have employed the rising philosopher in the translation of several of his works from English into Latin. And it may be presumed that this circumstance contributed not a little to encourage that bold spirit of inquiry and that aversion to scholastic learning which characterise his writings; whilst, through obstinacy and excessive opinionativeness, he determined to found a system of his own, disregarded experiment, and despised the labours of his predecessors. Lord Herbert of Cherbury was also one of the friends of Hobbes; and Ben Jonson is said to have revised his first published work, namely, the

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