There results, therefore, the imperative necessity of departing from the ordinary maxims of our common law courts, which are opposed to the admission of the evidence of the parties to a civil proceeding. In the case, before mentioned, of the exercise of summary jurisdiction over attorneys for alleged fraud in their business, by the courts at Westminster, the testimony of the parties is taken; but in actions for damages against attorneys for negligence, or want of skill, their evidence, according to the strict rules of law, is excluded. The reasons for receiving, or rejecting, such evidence, are equally cogent in both instances; and we are indebted to the general forms of proceeding* adopted by the Courts at Westminster, rather than to the exigencies of the case, that, in the questions of fraud alluded to, the testimony of the parties is admitted, in addition to that which may be considered as extraneous and supplementary. But by an irrational adherence to forms, the courts have pursued a plan of taking such evidence calculated to weaken most materially its effects. The party, who considers himself aggrieved, makes an affidavit, in writing, of the facts, and the attorney gives an explanation by another affidavit, in writing. By an inflexible rule, all further statements by the former are excluded. However comprehensive the allegations of his complaint in the first instance, it is problematical, if he shall put the court in possession of sufficient information to explain or answer by anticipation the facts subsequently advanced by the attorney. By an artful and partial introduction of new matter, which, if properly explained, would, perhaps, be found to be irrelevant, the latter frequently instils doubts into the minds of the court, prejudicial to the justice of the complainant's case. To prevent a failure of justice, it is manifestly essential, that the plaintiff should not be excluded from making further explanations, nor the attorney from replying to them. But as written

Special applications to the Courts against attorneys on the ground of fraud, are made in Term whilst the Courts are sitting in Bank, for the adjudication of points of law. All facts, that are required to be brought before the Courts at these times, are presented in affidavits, which may be made by any party however interested in the event of the decision; Interest in these cases only affecting the weight of the testimony, not excluding it. In accordance with this practice the attorney and complainant both give their evidence in applications of the nature above alluded to.

altercations, however tedious in length, are never in detail sufficiently minute to exhaust the subject they relate to, and as time and money are necessarily consumed in their preparation, that viva voce examinations of the parties would certainly be preferable. We are also inclined to substitute this kind of examination for written statements, in order that neither party should be at liberty to suppress, or distort, without instant liability to detection, any fact having reference to the question before the court; and also for those various and satisfactory reasons, which reflection upon the subject will suggest to every one, who has observed a witness under examination in a court of justice, where personal appearance, age, and manner, modify in an endless variety of ways, friendly to the ends of justice, the impression produced by the mere testimony.

The same reasons, that render a client unable to detect the violation of professional obligations by his attorney, operate with a jury composed of individuals equally unqualified for such a task, and prevent their arriving at any very accurate opinion as to his delinquency. Fraud is frequently perpetrated by the wilful performance of some act, the omission of which may, with adroitness, be ascribed to simple negligence, or ignorance; and vice versâ, the consequences of neglect, or want of skill, often assume the appearance of deliberate fraud. No one, therefore, unversed in the devious intricacies of the practice of the law, can duly appreciate the conduct of its practitioner with reference to a given occasion. We have already suggested the expediency of a personal examination of the complainant and attorney, in cases arising from a breach of professional duties by the latter. Owing to superior skill and expertness, his evidence would be given in a much more convincing, although, perhaps, treacherous form, than that of the complainant. The possession of this undue advantage by the former, could be neutralised only by the discrimination of a judge, his knowledge of the course of law business, and his sagacity in weighing evidence with reference to every possible extrinsic matter by which it is influenced. Jurymen would be misled by the tact and readiness of the attorney, whilst the hesitation of the client, and his abortive attempts to render intelligible what he himself never understood, would only confirm their erroneous views. With superior intelligence, and,

at this time of day it may safely be asserted, with equal integrity, we think the judge a much fitter instrument for ascertaining the delinquency of the attorney in the cases we have alluded to, and of awarding damages, where damages answer the demands of justice. Wherever other punishment is in question, it is, at present, entirely within the province of the judge, and might remain so.

In addition to the restraint thus briefly stated to be put upon the fraud, negligence, or ignorance of attorneys, we would suggest another means of obviating or diminishing the evils arising from those causes. We have already stated the occasion of the facility for the commission of fraud by attorneys, and of the veil that so frequently covers their incapacity or negligence, to be the technical forms and language, which they apply to every question coming before them in the way of their business. This they are obliged to do from the exceedingly difficult and inflexible machinery and phraseology, by means of which our law is brought to bear upon the transactions of life. The whole vice, however, of our legal system lies in a complicated procedure, imagined in barbarous times, and adapted to the laws, customs, and sentiments of ages, possessing little in common with our own days. In the language of sober reflection, Law Reform means scarcely more than the reform of our judicial establishments, and the various forms of procedure, by which, at present, the administration of the law is impeded. The law itself requires but little amendment beyond improved arrangement and expression. Amongst other beneficial consequences of Law Reform in this sense, would be the establishment of a natural aud direct connection between the proceedings and language of the portion of practice carried on by attorneys, and the matters upon which they are consulted by their clients. Under an inartificial system of procedure, assimilated to the proceedings in foro domestico, where a master institutes inquiries amongst his servants, or a father amongst his children, nothing, but the real question in issue between the parties, freed from all technical difficulties, would engage the attention of the attorney. Instead, therefore, of the enactment of law after law to stimulate the activity and penetration of attorneys in

technical subtleties, or to prevent their turning professional readiness to purposes of fraud, the end would be obtained with much greater certainty by such a reform of the proceedings, as would render them intelligible, of easy application, and unfit to conceal the stratagems of dishonesty.

Further means might be adopted to relieve the client from the consequences of incapacity or breach of duty by attorneys. They might be required, before admission, to give the security of responsible persons, or of a sum of money lodged in safe hands, to answer any damages accruing from want of skill, or abandonment of professional duty. The objections to this scheme may be anticipated, although their force may not be felt. Much might be said of an honourable profession being closed to indigent merit; but it will be remembered, that indigent excellence is excluded from all pursuits of trade requiring capital. It might be urged that a stigma was cast on the practitioners of the law, although throughout the public offices of the country, and in every species of private employment, men of honour and delicacy are required to furnish security, like the one proposed, for a faithful discharge of their trusts. It might be contended, that additional expenses were thrown upon the administration of the law, but we are confident that the public would cheerfully bear the increased burden, if accompanied by an improvement in the integrity and capacity of their legal advisers.

On the other hand, we would throw open the practice of the attorney, or law agent, to every one who felt himself competent to transact that branch of business. We would abolish the long apprenticeships that are so frequently spent in idleness, and profligacy, and all other formal regulations, of which the spirit, if not the letter, is always infringed, and which, therefore, create a mischievous feeling of confidence in the public. We would preserve the recently-revived examination, but would make its agency subservient to the ascertainment of the candidates' past conduct, general education and acquirements only. By these means, we are of opinion, that individuals possessing peculiar aptitude for the practice of an attorney—an aptitude that does not betray itself till an age more mature than that at which apprenticeship in the

ordinary sense of the term begins-would enter the profession to the exclusion of incompetent practitioners, and that clients would have the advantage of increased skill and diligence in attorneys, with augmented security against their want of probity.

ARTICLE IX.

Report from the Select Committee on Timber Duties, together with the Minutes of Evidence. Ordered by the House of Commons to be printed, 14th August,

1835.

We are about to examine a most grievous instance of the protective or bounty system. The Report of a Committee of the House of Commons has, once more, brought under the notice of the public, the colonial monopoly of the timber trade: and it will be our endeavour, with the aid of that Report, to analyze, dissect, and expound the character and operation of that monopoly, in such manner as shall qualify our readers to form for themselves a clear and just opinion upon its merits.

In order to do this with the more effect, our course will be, -first: to give a description of the peculiar features of this monopoly, by which it is distinguishable from all others, and to exhibit an account of the cost of it to the country: and next-to investigate, separately, the cases of the two great parties or interests-the colonists and the ship-owners-for whose emolument this country is called upon to make those sacrifices of its revenue, of its commerce, and of its necessaries and comforts, which we shall describe.

The advocates of every case of bounty, or of protectiveduty-which is only bounty in another form—always profess to intend the public good. They stoutly disavow, as in decency they must, all attempt to serve particular parties at the expense of the country; and they insist, that whatever that apparent expense may be, which is the first consequence of the bounty, it is money, which will soon be amply repaid through the secondary beneficial effects of the scheme. They assure us, that if the fostering hand of the State be extended to