distant time, it should chance that the truth should be made evident, and that justice should be done to his name, still that his blood wil have been shed uselessly for mankind--that his melancholy story will serve, wherever it is told, only to excite alarm in the bosoms of the best members of society, and to encourage the speculations for evading the law, in which wicked men may indulge.

When we are weighing the evil of the punishment of one innocent man against that of the impunity of ten who are guilty, we ought to reflect, that the suffering of the innocent is generally attended, in the particular instance, with the escape of the guilty. Instances have, indeed, occurred like that which I have already mentioned of Calas, where a man has been offered up as a sacrifice to the laws, though the laws had never been violated;---where the tribunals had committed the double mistake of supposing a crime where none had been committed, and of finding a criminal where none could . exist. These, however, are very gross, and therefore very rare examples of judicial error. In most cases the crime is ascertained; and to discover the author of it is all that remains for investigation; and in every such case, if there follow an erroneous conviction, a twofold evil must be incurred, the escape of the guilty, as well as the suffering of the innocent. Perhaps, amidst the crowd of those who are gazing upon the supposed criminal, when he is led out to execution, may be lurking the real murderer, who, while he contemplates the fate of the wretch before him, reflects with scorn upon the imbecility of the law, and becomes more hardened, and derives more confidence in the dangerous career upon which he has entered. 74-76.

We should here have closed the remarks on Sir Samuel Romilly's proposed reforms into which we have been led, had not the attempts that have been made by bigoted and interested men to cry down the object, as well as to distort the designs of his truly patriotic and humane labours, called for some more general notice. It is not our intention to go into the subject of his plans, generally, upon the present occasion; but we conceive that a simple statement of what he has effected, and what he has proposed, unfortunately without success, may tend to dissipate at once the mist which the heats of personal and party animosity have raised round this admirable and most deservedly popular character; and to show how far the charge of " rask and daring innovation," which has so wildly been launched at him, is founded in the facts. Those who, without looking at the real extent of his different plans, may have heard of this imputation, we venture to predict, will be not a little astonished when they come to see the real state of the case.

The first subject which engaged Sir Samuel Romilly's attention after he came into Parliament, must, we should suppose, be admitted on all hands to have been peculiarly appropriate;

one,

one, which his professional habits singularly well qualified him to deal with the Bankrupt Law. From the manner in which his legislative labours have been treated, those who do not know much of this learned person might be tempted to imagine, that he was some wild enthusiast, rushing from his study, in utter ignorance of the world, to pull down the established judicial system with which he was unacquainted, and erect another upon his own speculative and fantastical views. But we believe the bulk of our readers are aware, that he belongs neither to this description, nor to that other class which the country has some experience of; and which, with the cry of innovation on their lips, dabble to no small extent in legislative changes-narrow-minded and violent persons-brought up to the profession of the law, and vainly attempted to be pushed into its employments by the hand of power and patronage-but wholly unable either to acquire practice themselves, or to retain that which is thrust upon them, and ever ready to abandon the trade as hopeless, for offices where court favour may be powerful enough to support them. Sir Samuel Romilly was not of this caste. He had, by the force of his own learning and talents, and the most spotless integrity, risen to the very heights of professional ambition, before he was even heard of in Parliament;- and when he approached the important subjects of the Bankrupt Law, and the Law of Debtor and Creditor in general, he was, beyond all ques tion or pretence of rivalry, the first man in the Courts of Equity in this country. The reforms, which he here began with suggesting, were the result of his own observation, in the course of a practice the most various and extensive;-and, moderate as they were in extent, they are much greater changes than any of those which he has since ventured to recommend. In addition to those undoubted intrinsic advantages, he possessed accidentally another, at the time to which we are referring, that of being his Majesty's Solicitor-General ;-and to this we, in all probability, owe the comparatively slight opposition with which his first and most important measures were carried.

It is, no doubt, known to the reader, that, by the original and fundamental principles of the Bankrupt Law, the whole. estate of the bankrupt vests in the assignees under the commission by relation, from the time of the act of bankruptcy ;-so that all his dealings, with respect to the estate after the act of bankruptcy,-all his conveyances or payments to others, and all their payments of debts due to him, are liable to be rescinded by the assignees. The numerous hardships consequent on the rigorous prosecution of this principle, and its utter repugnance to the state of things in a commercial country, had very early occasioned a relaxation of it;-and, by the statutes of 1. Jac. I. c. 15,

and

and 21. Jac. I. c. 19, protection had been given to payments of debts bona fide due to the bankrupt, before the debtor knew of his bankruptcy, and to purchasers for a valuable consideration from the bankrupt, where the commission was not sued out within five years after the act of bankruptcy. But further relaxation being found necessary, by the 19. Geo. II. c. 32, further protection was extended to persons dealing with the bankrupt, against the effects of the principle of relation, in respect of secret acts of bankruptcy. It protects receipts of money by bona fide creditors, in the usual course of trade, in respect of goods sold to the bankrupt, or bills drawn, negotiated, or accepted by him. The principle of relation was, however, still much too rigorous; and, in some particulars which the statutes of James I. and Geo. II. had not even touched, it was productive of the most intolerable hardships. The bona fide debts contracted subsequent to a secret act of bankruptcy with persons wholly ignorant of that act, could not be proved under the commission; and, what was still worse, a commission regularly sued out, upon the petition of a creditor wholly ignorant of any secret act of bankruptcy committed prior to the contracting of his debt, and regularly proceeded in through all its stages, was liable to be avoided, and, with all the proceedings under it, utterly annulled, upon the discovery of some secret act of bankruptcy prior to the petitioning creditor's debt. To remedy such great evils, and to relax generally the principle of relation, according to a fixed and immutable rule, were the chief objects of the 46. Geo. III. c. 135, the first of Sir Samuel Romilly's acts. Besides allowing bona fide debts to be proved, notwithstanding previous secret acts of bankruptcy, and protecting the commission and proceedings from such acts, provided that, in either case, the creditor was ignorant of them, this statute protects all dealings with the bankrupt bona fide had, above two months before the date of the commission, from the effects of a prior act of bankruptcy, provided the person dealing with the bankrupt had no notice of that act, or of the bankrupt's insolvency, or his stopping payment. These are the principal enactments of this statute :-And, that they form a most important amendment of the law, can be doubted by no one who is not ready to defend every existing abuse, and injustice and impolicy,-and to maintain that every thing is perfect which has been made law before a certain date.

The statute which we have now been considering, was amended in some respects by another, which its author carried through parliament in 1809, the 49. Geo. III. c. 121. The alterations made on the former, related to points which we have not specified; chiefly to the provision of that statute, which made a docket struck notice of a prior act of bankruptcy, whether a commission

mission was sued out upon it or not. But. this last statute introduced many salutary changes into the proceedings under commissions ;-it enlarged the facilities of proving debts-it extended to executions and attachments against lands and goods the protection from the effects of secret acts of bankruptcy which the former statute had given to bona fide dealings with the bankrupt--and it enacted, that the production of the commission and proceedings should in all actions, by, or against, the assignees, be evidence of the trading, the act of bankruptcy, and the petitioning creditor's debt; unless notice be previously given of an intention to contest these points, and dispute the validity of the commission. We believe the general experience of the profes sion has decided in favour of these alterations; and that the only doubt which remains relates to another, and perhaps the most material branch of the act, by which the concurrence of threefifths in number and value of the creditors is declared sufficient to grant the bankrupt's certificate and discharge, instead of fourfifths, the proportion formerly required. Into the merits of this point, however, it would be inconsistent with the plan of this sketch to enter. We are confident, that the question will receive a full and rigorous, though candid, scrutiny among the learned persons within whose province it lyes to decide it; and we are no less persuaded, that the first to acknowledge he has been wrong, and to assist in correcting the error, will be the liberal and ingenious author of the measure, if a further trial shall convince him that the old proportion is preferable. *

In the next measure which Sir Samuel Romilly proposed, he would, in all probability, have been equally successful, but for the change of ministry which took place while his bill was passing through the House of Commons. By the law of England, the creditor has his election (except in the case of debts to the Crown-for the other kinds of extent are obsolete), of taking either the property or the person of the debtor + in satisfaction of

his

We refer our readers, for many important observations on these subjects, to the excellent pamphlet published by Mr Evans, entitled, A letter to Sir Samuel Romilly.' This is the same gentleman to whom the world is indebted (among other valuable publications) for a translation of Pothier's work, with most learned and useful commentaries; and certainly there are few members of the profession who adorn it with more depth and variety of legal learning.

He may take, in the first instance, the goods in execution; and then, for the part of the debt remaining unsatisfied, he may take the person of the debtor; or he may take the goods, and the profits of the land already accruing (a remedy nearly obsolete); or he may take the

goods,

his debt;-and if he takes his real estate, he can only seize one half of the land, out of the profits of which he may satisfy one debt. This remedy is not a very ample, nor a very easy one in all cases; but there is one case in which it wholly fails. If a person owes money on simple contract, and dies before any judgment has been obtained, unless he leaves personals, the creditor has no claim upon his estate, however extensive it may be, and how little soever burthened with debts by specialty, and however free from the fetters of an entail. Thus a man may owe upon bill, note of hand, or account with his tradesmen, ten or twenty thousand pounds-he may die and leave his son, or a stranger, a clear landed estate to the amount of twenty thousand a year:-Not one of his creditors can come upon this estate for payment. When Sir Samuel Romilly broached this subject, the evil was still more enormous. A person might engage in trade to the largest amount-he might, for example, by the issue of bank notes, obtain possession of hundreds of thousands -he might vest all this in land;-if he died, and left the land to his family, or to a stranger, the creditors, with whose money it had been bought, could not touch an acre of it. * Sir Samuel Romilly, therefore, introduced a bill to make the freehold estates of persons dying indebted, assets for the payment of their simple contract debts. He cautiously abstained from touching copyhold estates-he proposed that specialty creditors should still have full preference; yet great exception was taken at such daring innovation; an attempt was made to raise an alarm among the aristocracy, by a cry of the landed interest being in danger; and the supporters of the bill were openly accused of insulting the memory, and undervaluing the wisdom of our ancestors.' It would be a tedious and unprofitable task to expose such base follies as these ;-to ask what honour the aristocracy could derive from a privilege to cheat their creditors,

of

goods, and a moiety of the land, to hold by elegit until the debt is satisfied. He cannot take the person first, and then the goods; nor can he take the person and the land. For debts by statute-merchant and statutestaple, he could have taken all three by extent; but these kinds of recognizance being now obsolete, the only extent in use is that issued for debts due to the Crown; and to satisfy these, goods, lands and person are all liable, and the lands even in the hands of a bonâ fide purchaser for a valuable consideration. Our readers, in this part of the United Kingdom, will readily excuse us for mentioning these particulars, as necessary to prevent mistakes.

*There were innumerable cases of this kind; and one is pretty well known, in which the debtor destroyed himself to defraud his creditors, and left his, or rather their, land to his heir.