condition, upon which this power of ascertaining the law will rest, is, that he may make the inquiry without incurring any danger. The communication must be privileged to the utmost extent, or it will not be made. Thus it will be one consequence of the rule, that the law will be in no way open to the community at large: to them it will be a sealed book; and this axiom, from which every decision, in a greater or less degree, derives its justification in point of morality, will work very grievous injury.

The present rule of law is calculated to work the greater evils, because the persons acquainted with it are so few. We doubt whether any one merchant in the city of London, in stating for the opinion of counsel the condition of his firm, anticipates the possibility of ever producing his statement in a court of justice: whether any one proprietor of land, stating the circumstances of his own acknowledged title, or of some possible adverse title, supposes that his statements can be ever subjected to the inspection of an adverse claimant; whether, in short, out of every hundred persons who consult counsel, ninety and nine do not write in perfect confidence that they write for the eye of counsel and of no one else, and that, however much they may be off their guard, their statement can do them no injury, as it can never be employed against them.

We may remark, that the evils, which we attribute to this rule as results flowing from it, are merely those which it has a tendency to produce. They are of such a nature, that it lies out of our power to show how frequently they actually have occurred. We cannot tell how often a fear of discovery has deterred a person from seeking legal advice, or from preserving useful papers, or from revealing the entire facts of his case. The very nature of these events renders it improbable that they should often come to light. Our readers will judge whether we point out the tendency of the rule correctly, and if we do, will, we hope, concur with us in condemning it. The universal ignorance of this rule of law, by which it seems to us to be increased in danger, has of course diminished the number of instances in which many of the consequences which we apprehend from it have occurred.

We would ask whether the advocates of this rule have

seriously considered the fearful relation which it will create between a lawyer and his client. We are not so utopian as to suppose that, in the long lists of our profession, names will not be found of lawyers treacherous to their clients, of men who-" Scire volunt secreta domus atque inde timeri." Such lawyers, if this rule is to prevail, will have their clients at their mercy, and may at any moment contrive their ruin. A learned judge well asked, on one occasion,1 "Suppose the case of an attorney consulted on the title to an estate, where there was a defect in the title, can it be contended that he would ever be at liberty to divulge the flaw?" And yet, if that defect arises from a birth, or a death, or from some other event, upon which the title of an adverse claimant has any dependence, the attorney, upon the principle of this obnoxious rule, will not merely be at liberty, but will even be compelled to divulge the flaw. It could hardly have been expected that, in the same country in which the mere mention of a registration of title raised up such a host of imaginary fears, a law should be recognized by which every proprietor of land is at once subjected to the disclosures of his attorney.

We write under a conviction that in this question we all have a most important interest. It is no slight requital for the labours and anxieties of a lawyer in practice, no small encouragement to the increase of his efforts, that he finds in his client unlimited confidence. The dull routine of ordinary practice is sometimes broken by a case in which great interests are to be supported, important rights to be maintained, and schemes of fraud and injustice to be unravelled and thwarted. It is on occasions of this kind that a lawyer rises above the feelings of an ordinary practitioner, and in the consciousness of the trust reposed in him, and of the faith entertained in his abilities and honour, becomes sensible of the nobler and more generous attributes which belong to his profession. He feels that he is a guardian of the weak, and adviser of the ignorant, and that he may rejoice in the power

1 Cromack v. Heathcote, 2 Brod. & B. 6. 1820.

2 "Quand un avocat veut peindre en beau sa profession, que fait-il? Il trace le portrait d'un juge, et met au bas son propre nom; il se représente comme le défenseur de l'innocence opprimée, le conseil de la justice, le réparateur des torts, l'appui des orphelins.”—M. Dumont sur l'Organisation Judiciaire, p. 166.

of protecting the oppressed, as a reward for many a weary hour of toil and disappointment. But if the intercourse with his client is not to be privileged; if the statement made for his information may be brought to light; still more, if he himself is to be witness against his client, confidence will cease, respect for the protector will be absorbed in dread of the witness, and the shades of suspicion will obscure the gleam of sunshine which might have enlivened and cheered his professional studies.

The rule, too, will be no slight aggravation of the client's distress. When a tradesman falls into difficulties, or a landowner is sinking beneath the accumulated incumbrances of his property, the greatest relief which he can obtain, greater often than the sympathy of an unprofessional friend, is the privilege of communicating his distresses to his legal adviser, of discussing their nature in unreserved confidence with him, and of thus ascertaining the means of redress. Est enim sine dubio jurisconsulti domus totius oraculum civitatis.1 The rule of which we complain destroys the privilege of this sanctuary. This further embarrassment is thrust upon a person almost overwhelmed already, that being himself ignorant of the law, he dares not mention his case to one who might inform him, for fear of creating evidence against himself.

Our limits confine us to only one more argument bearing upon the subject before us. Mr. Preston once said, that out of thirty questions submitted for his consideration, not more than one found its way into a court of justice. Indeed, the adjustment of disputes by the opinion of counsel takes place so far more frequently than by a suit or trial, that it may be said to form in this country the practical administration of civil justice. Now neither we nor our readers are likely to be led away by the common complaints of the law's delay, or by the ordinary declamation against lawyers. We know that, generally speaking, men have themselves to thank for the miseries of litigation, from which they might almost be exempt, if they were not guilty of negligence or fraud, or of certain other habits and propensities, more or less vicious.

1 Cic. de Orat.

Still every attempt should be made to apply the least painful remedy to the evils which proceed from these mischievous faults. A lawsuit should always be avoided when justice can be obtained without it. It is in the private chamber that the lawyer exercises his most useful functions: explains rights with the smallest expense, shortens the period of anxious expectation, and arrests in its commencement an evil, which at every step of its progress grows pregnant with augmented sufferings. It is there that he best serves the cause of humanity by alleviating most effectually the distress of his fellow-creatures. It is there that he fills the character of a friend, who is able and willing to point out the best course of action under the most trying circumstances. "The greatest trust," says Lord Bacon, "between men and men, is the trust of giving counsel. For in other confidences men commit the parts of life; their lands, their goods, their children, their credit, some particular affair; but to such as they make their counsellors they commit the whole, by how much the more they are obliged to all faith and integrity." The condition upon which alone this counsel can be given requires particular attention. The lawyer must have the whole of his client's case, or he cannot pretend to give any useful advice. Upon a partial statement of facts he may judge correctly, and yet give his opinion in favour of a claim, which, if he had known all the circumstances, he would have perceived to be unjust, and which a court of justice upon full investigation at once overthrows. That the whole will not be told to counsel unless the privilege is confidential, is perfectly clear. A man who seeks advice, seeks it because he believes that he may do so safely; he will rarely make disclosures which may be used against him; rather than create an adverse witness in his lawyer, he will refuse all private arbitration, and take the chance of a trial.

We submit, that any rule which tends to prevent the settlement of quarrels by such arbitration will work an enormous evil. Our judges ought to pause before they sanction the received rule upon the production of cases, which, as it interferes with the communication between client and counsel, renders it dangerous to adopt this course, so easy and so safe, so free from vexation, and satisfactory to all honourable minds.

We leave this subject with regret, for, having a strong sense of its importance, we fear that we have done little justice to it. But if we draw to it the attention of any active members of our profession, and induce them again to take it into their consideration, with a view to the propriety of arguing it once more in a court of equity, our object is accomplished.

C.

ART. IV. CONSTRUCTION OF THE PRESCRIPTION ACT.

SINCE our former observations on this subject1 were written, several cases have been decided on the construction and application of this important statute, the discussions and judgments in which, although hardly perhaps bearing upon the questions most difficult of solution which may arise on its several enactments, will materially have aided in the general interpretation of it; more particularly of the fifth section, which prescribes the mode of alleging in pleading the rights which are the subject of the act.

2

The first case decided subsequently to Bright v. Walker, on which we commented in our former article, was that of the Monmouthshire Canal Company v. Harford, (1 Cro. Mee. & Ros. 614, and 5 Tyrw. 68.) There, in trespass for breaking and entering a close used as a railroad, the defendants pleaded (amongst other things) that the occupiers of the adjoining closes had for twenty years, as of right and without interruption, used and been accustomed to use the privilege and easement of passing and repassing, &c. and laying down railroads over the plaintiff's railroad.—The replication to this plea traversed this claim of right in terms, and issue was joined thereon. Upon this issue, evidence was admitted of applications made by the defendants, within twenty years, for leave to put down railways across that of the plaintiffs. It was contended for the defendants, that the replication merely traversed

'L. M. vol. xiii. p. 155.

2 We have heard it stated in the profession, (we cannot say on what authority,) that some of the judges are not altogether satisfied with the determination in Bright v. Walker.