lightened philosophy, and the tenderest feelings of the heart. "Ici un spectacle effrayant se presente tout-á-coup a mes yeux. le juge se lasse d'interroger par la parole, il veut interroger par les supplices: impatient dans ses recherches et peut-être irritè de leur inutilité, on apporte des torches, des leviers, et tous ces instrumens invéntés pour la doleur. Un bourreau vient se mêler aux fonctions de la Magistrature, et terminer par la violence un interrogataire commencé par la liberté-Douce philosophie, toi qui ne cherche la verité qu'avec l'attention et la patience, t'attendais-tu que dans ton siêcle on employât de tels instrumens pour la decouvrir". (L'Homme aux quarante ecus).

CHAP. XXIII.

FURTHER, if a right accrues to a man to plead upon a trial, which arises from a contract, a fact done, a title of inheritance, or the like: in these cases, if either there were no witnesses at the first; or, if they that were, are dead, the plaintiff will be obliged to drop his action, unless he can prove his right by such strong circumstantial proofs, as are not to be evaded, which seldom happens. Where lordships, and other possessions are in dispute; and in all other actions which fall under the jurisdiction of the Civil Law, the actions of the plaintiffs are very often rendered incapable of being brought to an issue for want of evidence, so that scarce one half of them can attain the end proposed: under what denomination then is that law to be ranged, which, where parties are injured, is so defective in making satisfaction. I question whether such a law can be called just, if that be true which this very law informs us, (viz.) "That justice gives to every one their due;" which such a law as this most certainly does not.

a

The preamble to the 27th Henry VIII. enumerates the inconveniences experienced in trials in the Admiralty Court, conducted according to the rules of the Civil Law, and may illustrate the observations of Fortescue, in the present and some preceding Chapters. "Where pirates upon the sea many times escaped unpunished, because the trial of their offences hath heretofore been ordered before the Admiral after the course of the Civil Laws, the nature whereof is, that before any judgment of death can be given against the offenders, either they must plainly

confess

confess their offence (which they will never do without torture or pains) or else their offences be so plainly and directly proved by witnesses indifferent, such as saw their offences committed, which cannot be gotten but by chance at few times, because such offenders commit their offences upon the sea, and at many times murder and kill such persons being in the ship or boat where they commit their offences, which should bear witness against them in that behalf, and also such as bear witness be commonly mariners and shipmen, which, for the most part, cannot be gotten, nor had always ready to testify such offences without long protraction of time, and great costs and charges, &c."

CHAP. XXIV.

Ir being thus explained how the Civil Laws direct the judge concerning the truth of a fact, which is brought on to trial, it remains to be explained how the Laws of England boult out the truth of a fact, when it comes in issue. The manner of proceeding in both laws being laid, and compared together, their qualities will appear the more eminently, according to that saying of the philosopher, "Opposites placed together give light to one another." But here, by way of introduction, and to borrow the rule or method used by orators, it may be necessary to premise some things, a right understanding whereof will help to let us into a more clear and distinct understanding of what follows: I proceed thus: England is divided into Counties, as France is into Bailliwicks, or Provinces, so that there is no place in England, which is not within the body of some County:" counties are divided into Hundreds, which in some parts of England are

a

Among Hearne's Discourses, are several curious Tracts relative to the antiquity of Counties, and the principles upon which the division of them was made; and several solutions are there offered, to account for those strips of counties lying within the limits of one Shire, but which are parcel of another the division of Counties is also treated of by Camden, in the Introduction to his Britannia, and many interesting facts respecting the Counties of England, are collected in the Dissertation upon Domesday Book, which has been published by commissioners for the public Records. (See further, respecting the "quillets" of Counties, Peck's Notes on Shakespeare's Plays, in his Memoirs of Milton, p. 230, and on the antiquated Counties, the distinction of Counties and Shires, and the Earldom of Berkshire, Fuller's Worthies, c. 19.)

called Wapentakes", and Hundreds again, are subdivided into Vills, under which appellation

It

b In the laws ascribed to Edward the Confessor, is the following passage: "Everwickshire, Nicholshyre, Nottinghamshire, Leicestershire, Northamptonshire usque ad Watlingstrete et octo millia ultra sub lege Anglorum sunt, et quod Angli vocant hundredum supradicti comitatus vocant wapentachium.” appears from an entry in Domesday Book, under the head of Nottinghamshire, that the Wapentake paid the third penny in the same manner as the Hundred. The original meaning signified by the division of hundreds has been disputed by Antiquarians of great celebrity: a hundred families, a hundred proprietors, a hundred hydes, a hundred villages, have all been assigned as the foundation of the name. Tacitus speaks of an institution among the ancient Germans, which is supposed by some writers to have been introduced by the Saxons into this Country, “Centeni ex singulis pagis sunt, idque ipsum inter suos vocantur." And another passage from the same author has been thought to explain the meaning of the term Wapentake, "Considunt armati : si displicuit sententia, fremitu aspernantur: sin placuit, frameas concutiunt." But the signification of this word, as well as that of "Hundred" has given rise to a variety of opinions. Hallam conjectures that the Wapentakes must have been planned upon a different system from the Hundreds, for he thinks that the circumstance of the greater density of population existing in the south of England in early times, is not sufficient to account for the inequality observable in the number of Hundreds for the same extent of Country. The Wapentakes appear to have undergone a great alteration in their names since the period when Domesday Book was compiled. (Diss. on Domesday Book, Report of the Commissioners for Public Records. Hallam's Middle Ages, Vol. II. p. 139. and see ibid. respecting the Jurisdiction of the Tithing-man. Spelman's Gloss. Voc. Wapentachium and Hundredus. 2 Inst. 99.)

says

Fortescue's description of Vills, is cited in the first Institute: but Coke's definition is more particular than that in the text: he that a Vill is "ex pluribus mansionibus vicinata," and it must have had a church and celebration of divine service, sacraments and burials. Blackstone observes, that the latter distinction is more of an ecclesiastical nature, and he adds, that a Vill formerly contained ten freeholders, and is synonymous with a tithing. It has been considered that the word " pluribus" in Coke's definition, points to a greater number than two: but the modern notion of a Vill in the Courts of Law, seems to depend upon the circumstance of the place having had a constable. In the Exchequer is preserved a register of the names of all the villages

and