Chief-Justice Willes, admitting Lord Coke to be a great lawyer, then
proceeds in very strong terms, and with marks of contempt, to condemn
"_his narrow notions_"; and he treats with as little respect or decorum
the ancient authorities referred to in defence of such notions.

The principle of the departure from those rules is clearly fixed by Lord
Hardwicke; he lays it down as follows:--"The first ground judges have
gone upon, in departing from strict rules, is _absolute strict
necessity_; 2dly, a _presumed_ necessity." Of the first he gives these
instances:--"In the case of writings subscribed by witnesses, if all are
dead, the proof of one of their hands is sufficient to establish the
deed. Where an original is lost, a copy may be admitted; if no copy,
then a proof by witnesses who have _heard_ the deed: and yet it is a
thing the law abhors, to admit the memory of man for evidence." This
enlargement through two stages of proof, both of them contrary to the
rule of law, and both abhorrent from its principles, are by this great
judge accumulated upon one another, and are admitted from _necessity_,
to accommodate human affairs, and to prevent that which courts are by
every possible means instituted to prevent,--A FAILURE OF JUSTICE. And
this necessity is not confined within the strict limits of physical
causes, but is more lax, and takes in _moral and even presumed and
argumentative necessity_, a necessity which is in fact nothing more than
a great degree of expediency. The law creates a fictitious necessity
against the rules of evidence in favor of the convenience of trade: an
exception which on a similar principle had before been admitted in the
Civil Law, as to mercantile causes, in which the books of the party were
received to give full effect to an insufficient degree of proof, called,
in the nicety of their distinctions, a _semiplena probatio_.[52]

But to proceed with Lord Hardwicke. He observes, that "a tradesman's