measures the leap of the horses by the extent of the world," which is not true, and upon this assertion he grounds the following remark-Who is there, that considering the superlative magnificence* of this thought, would not with good reason cry out that if the steeds of the deity were to take a second leap, the world itself would want room for it?"

Now to come to the fact-HOMER does not make the leap measure the extent of the world, but the hemisphere, which bounds a man's vision of our globe, even if he were in a balloon, therefore the celestial coursers would just have room for a second leap-and the two might afford them very pretty exercise backwards and forwards!

In another place, where his authority has been disputed, I perfectly agree with him. "The Jewish legislator, no ordinary person, having," says he, "conceived a just idea of the power of God, has nobly expressed it in the beginning of his law, (laws)—And God said-What?-Let there be light, and there was light. Let the earth be, and the earth 2048."'+

The justice of this criticism is denied by two eminent French critics, M. LE CLERC, and M. HUET, Bishop of Avranches. They cannot perceive the sublimity, which Longinus discovers, and so candidly admits. Candidly I say, be cause a critic of an inferior mind might, at the period of composing what is called his golden treatise, have been so preju diced against the writings of Moses, as to have been blind to his merits. SMITH, in his life of LONGINUS, says "There is a strong probability that he was not only acquainted with the writings of the Old Testament, but with those also of the New, since to a MS. of the latter in the Vatican, there is prefixed a passage from some of this author's writings, which is preserved there, as an instance of his judgment. He is drawing up a list of the greatest orators, and at the close he says-And further PAUL of Tarsus, the chief supporter of an opinion not yet

* Smith. But this is not exactly the regon, or hyperbole of Longinus.

t Ib.

established." Then comes Fabricius, and attributes these words to Christian forgery, but for, what reason," says Smith, "I cannot conjecture." Surely it is not meant to be said that he was not one of the greatest orators. If it be eloquence to persuade, what is he in fetters, making Felix tremble, and Agrippa, by his own confession, almost a Christian, "I would to God, that not only thou, but also all that hear me this day, were both almost, and altogether, such as I amexcept these bonds." This is exquisitely dramatic.

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Longinus censures Gorgias for this passage, yes uxor capoly in which he calls, vultures, who devoured dead bodies, living sepulchres--but I do not find that he or any of his friends, censured Eunapius for calling the Critic, who devoured dead wits, a living library, and a walking museum. However I shall be very cautious how I give my sanction to these conceits, for Hermogenes, who also condemns Gorgias's living sepulchres, says, that the authors of such quaint, expressions, deserve themselves to be buried in such tombs."

ས་

**

Since writing the above, I have discovered that Julius Scaliger agrees with me respecting Homer's description of Discord, with her head in Heaven, "ineptum, indignum, falsum, ridiculum, fatuum." 1. 5, c. 3. Poor BARNES is very peevish about this censure, and thinks he mends the mat. ter by quoting the Apocalypse, cap. 12, v. 7. "And there was war in Heaven"—of course with feet on earth at the same time!

LEGAL FICTIONS.

FANCIES too weak for boys, too green and idle
For girls of nine.

Winter's Tale, act iii. sc. 5.

JUDGE BLACKSTONE tells us in his Commentaries that no fiction is suffered to work an injury, but is, on the contrary,

only employed for the benefit of the injured. It is, however, a miserable auxiliary of legislation, and ought never to be ad mitted; yet how many fabulous or imaginary beings have we in our legal drama ?

We have John Doe and Richard Roe pledging themselves to prosecute persons, who owe them nothing-they are mere fictions by which the practice is made to satisfy the law. In the process of ejectment, we have the unknown Simon Thrustout expelling Timothy Wouldstay out of lands he ne ver possessed; and being brought against a cottager, the whole of whose possessions do not perhaps contains sixteen square yards, he is charged with keeping possession of twenty messuages, twenty dwelling-houses, twenty woods, twenty gardens, twenty turbaries, &c. &c.

In an action to recover 40s. by clausum fregit in the ComMON PLEAS, plaintiff must aver that defendant broke his close, and trod down two acres of clover, rye, and other grass; and, to finish the absurdity, all this is declared to have been done at WESTMINSTER, under the nonsensical term of videlicet.

In an action brought for CRIMINAL CONVERSATION, the declaration states that with sticks, staves, swords, and guns, defendant did make an assault upon plaintiff's wife, and did then and there carnally know her-whereas in these cases, the truth is, there is neither force nor trespass, but free consent on both sides.

The writ of quo minus from the EXCHEQUER, and the action of Trover and Conversion, are equally pregnant with absurdity and falsehood.

Another fiction is of the miraculous kind, and it may be presumed, was borrowed from the Monasti.c Legend, which tells us that the chapel of Loretto was removed in one night from Palestine to Italy, for if a man contact a debt in Jamaica, a legal fiction removes Jamaica into the parish of Islington in the county of Middlesex, or into the parish of Saint Mary-le-Bow, in the ward of Cheup, in the city of London, &c.

The fiction took its rise from the distinction between local

and transitory actions. The former are all those actions, that relate to lands, &c. which must be tried in the county wherë the lands lie-the cause of the latter is supposed capable of having arisen any where, but must in conformity to the old principle That the action must be tried in the county where the cause arose," be stated to have happened, where the plaintiff chuses to have it tried this is done by the magic of a videlicet but if it be not in truth material where the cause of action arose, what is the use of stating, first where it actually did happen, and then transferring it to Cheapside ? It would save a great deal of formal repetition, and much shorten the pleadings, to leave out all these nonsensical alle. gations, and the suitors would profit by the abridgement; but then the revenue would lose, the officers of the court would lose, the special pleaders would lose, and the attornies would lose and, surely, all these accumalated losses are more to be considered than the interest of the client ! !

To this may be added the lying jargon of recoveries. It is admitted that a recovery is a mere conveyance, by which an estate tail is converted into a fee simple, by a kind of magic, the only use of which is to encumber the transfer of estates with an enormous expence, to put money into the hands of the officers of the court of Common Pleas, to create business for the conveyancers, et ceterd. If entails be worth preserving, why should they be permitted to be destroyed by a mere ac cumulation of fictions? If they be not worth preserving, why should it cost so much to get rid of them!

Fines are liable to the same observations. The courts of law, it must be admitted, are not to be blamed for these legal fictions, but the negligence or selfish obstinacy of the legisla ture. "That all lands are holden of the King."" That the term is but one day"—were once literally true. The phrases "benefit of clergy" had once an appropriate mean. ing, incurring premunires," “the doctrine of common recoveries," and "casual ejectors," although fictions now, were also once correct expressions, but by course of time and accident, they are greatly perverted from their original signification. The courts have been obliged to adopt them in order

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to preserve an appearance of adhering to the old principles of law, and at the same time to adapt the administration of justice to the changing state of society. The legislature has, however, occasionally interposed to prevent the necessity of this ridicu. lous jargon. Justice seems indeed to surrender up her own natural character, when she distorts her proceedings by tra velling circuitous paths to that, which may be better attained directly. It is wrong, said my LORD MANSFIELD, that the legislature should be silent, and force the courts, in order to attain the ends of justice, to invent subtleties, which do not come up to the common understanding of mankind*. BARRINGTON, speaking on the same subject, adds, that, in this enlightened age, when other questions are decided with such strength and force of reasoning, it is high time an end were put to such unintelligible trumpery.+

The greatest part of our legal fictions originate in the feudal system, which having been abolished, an immediate revisal of our judicial code should have taken place, to lop off those maxims, arguments, and reasonings, which now only remain to obscure, and encumber its practice. This will happen when our great Lawyers feel with LORD BACON, and act accordingly. "I have," says he," from the beginning come to the study of the laws of this realm, with a mind and desire no less, if I could attain unto it, that the same laws should be the better by my industry, than that myself should be the better by the knowledge of them,"

* Douglas Rep. 523. And Mr. EDEN, in his Principles of the Penal Law, observes that "it is repugnant to the duty and wisdom of law to seek any ends by the harsh and unseemly intervention of subterfuge and fiction. The candour of legislation should ever be inviolable." P. 179.

FABIAN PHILLIPS, in his treatise on capiases and outlawries, says, "the conveyance by lease and release was first contrived by Sir FRANCIS MORE, at the request of Lord NORRIS, that his relations might not know what settlement he had."

Preface to his Maxims of the Law.