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BOOK IV.: OF PREAPPOINTED EVIDENCE. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 6 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 6.
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OF PREAPPOINTED EVIDENCE.
OF PREAPPOINTED EVIDENCE IN GENERAL.
Preappointed evidence, what?—Topics for discussion enumerated.
We come now to the subject of preappointed evidence: a subject new in denomination, and thence, taken in the aggregate, even in idea: for, without names to fix them, ideas, like clouds, change and vanish as speedily as they are produced.
In every case in which the creation or preservation of an article of evidence has been, either to public or private minds, an object of solicitude, and thence a final cause of arrangement taken in consequence (viz. in the view of its serving to give effect to a right, or enforce an obligation, on some future contingent occasion,)—the evidence so created and preserved comes under the notion of preappointed evidence.
The sort of facts which such evidence is employed to prove, are mostly facts constitutive or evidentiary of right. Facts constitutive or evidentiary of wrong, will not readily find persons able, and at the same time willing, to make mention or join in making mention of them in writing, or any other way in which the memory of them will be preserved.
The rights of which the evidence is in this way endeavoured to be preserved, are mostly either rights to property in some shape or other, or rights to condition in life.
Preappointed evidence may be distinguished into original and transcriptitious.
Examples of articles of original preappointed evidence are—
1. Registers of deaths, births, marriages: these have been more particularly the objects of public care.
2. Instruments expressive of the different sorts of contract, in the most extensive sense of the word; including not only those expressive of obligatory agreements, but those expressive of conveyance, whether by deed at large, or by the sort of deed called a will or testament—a particular sort of unilateral conveyance, which is not to take place till after the death of the conveyer, and in the meantime is destructible or alterable at his pleasure: as also all other sorts of contract by which a contract of the sort first mentioned is, in the whole or in part, either destroyed or altered.
Examples of the transcriptitious species of preappointed evidence are afforded by the register offices established in and for Middlesex and part of Yorkshire, and the offices for enrolment belonging to some of the judicatories in Westminster Hall.
In the course of this book, the following are the topics proposed for consideration:—
1. Ends or objects that are or ought to be aimed at (viz. on the part of the legislator,) in relation to preappointed evidence.
2. Field of preappointed evidence: i. e. subjects of proof by preappointed evidence, considered in an aggregate view, and under subordinate divisions.
3. Advantages proper to be aimed at, and inconveniences to be avoided, in relation to preappointed evidence.
4. Description of persons to whom, and occasions on which, the institution of the same mass of preappointed evidence may be advantageous.
5. Means by which, in relation to the different subjects of proof (as above,) the general object in view may most effectually and conveniently be attained.
Objects or ends of preappointed evidence: Cases to which it is principally applicable.
Not judicature only, but all human action, depends upon evidence for its conduciveness to its end: evidence, knowledge of the most proper means, being itself among the means necessary to the attainment of that end.
Be the occasion what it may (it being one that calls for action,)—to possess a stock of evidence suitable to the occasion, is to possess correct and complete knowledge of all such matters of fact, the knowledge of which is necessary to right conduct—to a course of action suitable to that same occasion, whatsoever be the nature of it.
But, be the occasion (the sort of occasion and the individual occasion) what it may, the demand for such suitable evidence will be the same. So far as, without any special care taken in any part of the field on the part of the legislator, it be sure to spring up of itself, so far there is no need of preappointed evidence, or at least of anything to be done on his part towards securing either the existence or the aptitude of such preappointed evidence. If anywhere there be an actual deficiency, or a risk of a deficiency, it is then and there matter for his consideration, whether, by any exertions of his—by any provision made for that purpose, the filling up of such deficiency be at the same time practicable and eligible.
But, on a judicial occasion, as on every other, evidence in almost every instance is liable to prove deceptitious.
Hence two problems looking throughout for solution at the hands of the legislator’s guide:—1. How to secure the existence of true evidence; 2. How to guard the judge against deception, considered as liable to be produced by false, or in any other way fallacious, evidence.
Evidence being a standing object of research in every line of human action, and in particular in every department of government; it follows that, in proportion to the wisdom of the government, the endeavours on the part of the government to provide itself, in every part of the line, with an apposite stock of evidence, will be comprehensive and unremitted. So far at least as desire and endeavour are concerned, the sphere of operation, in respect of the securing the requisite provision of preappointed evidence, has no other limits than those of the entire field of evidence. Setting aside particular limitation, the general rule of practice would accordingly be, to lay in beforehand a stock of evidence applicable to all purposes, and producible on all occasions: in a word, to leave nothing to chance, to trust no operation to so slippery a ground as that of casual evidence—to cover the whole field of political action, as it were, with magazines of preappointed evidence.
Two considerations, and two only, serve to limit the exertions of government in this line,—impracticability, and expense.
1. In one class of cases, the nature of things (it will be seen) renders the success of such exertions hopeless. This is the case of delinquency in general. When you have said, whosoever does so and so shall be punished,—for the proof of the fact by which such punishment has been incurred, casual evidence is evidently the sole resource. The nature of man forbids us to expect that the child that has done amiss should, as soon as it has done amiss, come in of its own accord, and present its back to the chastising rod.
2. Expense is another consideration, which on this as on every other ground, sets limits to the operations of every prudent government. By expense, on this as on other occasions, I do not mean mere pecuniary expense, but evil, inconvenience, vexation, labour, in whatever other shape it presents itself. Gold itself may be bought too dear, is a consideration which, on this ground as on every other, is never out of the eye of a well ordered government.
Such are the two topics from which will be drawn whatever limitations present themselves as applying to the demand for preappointed evidence.
Looking over the field of evidence at large for objects admitting and requiring preappointed evidence, we shall find them reducible to three classes, viz.
1. Laws; viz. laws in the common acceptation of the word: rules of action which derive their tenor or their purport, as well as their binding force, from the legislator alone, without the concurrence of any individual hands.
2. Contracts; viz. the word being taken in the largest sense, in which it comprises not only agreements, legally obligatory agreements, but conveyances, or instruments expressive of transference of legal rights, and among conveyances, testaments.
These are in fact so many laws, obligatory rules of action, in the enactment of which the legislator and the individual concur; the individual furnishing the act of volition, and the expression given to it—the legislator furnishing the binding force, and (in quality of necessary conditions and concomitants to binding force) limits, and interpretation.
3. Facts; i. e. legally operative, legally important facts: facts to which the body of the laws, whether general or private contractual (as above,) have given the quality of producing or destroying rights or obligations: events or other facts collative (or say investitive,) ablative (or divestitive:) say, in either case, facts dispositive: these in the non-penal (called the civil) branch of law; add to which, in the penal branch, on the one hand, acts, events, and other facts, inculpative and aggravative; on the other hand, facts exculpative, extenuative, and (with a view to punishment independently of the consideration of delinquency or innocence) exemptive.*
Laws, whether of the purely public or of the private (or contractual) class, as above, have no other object, effect, or use, than in as far as they give birth or termination to rights or obligations: to rights purposely, as being the only beneficial products of law—to obligations necessarily, inasmuch as no right can be conferred or created without the creation and imposition of a train of correspondent obligations. But, throughout a large portion of the field of law, it is only through the medium of facts to which, in this view, the law has imparted those prolific and distinctive powers, that the law has it in its power to give birth or termination to rights and obligations.†
Of a very extensive and diversified mass of facts, the existence is habitually declared, and the remembrance preserved, by portions of written discourse committed to paper on the occasion of the acts performed in the exercise of the functions attached to the several established public offices, in books kept under the direction of the governing functionaries belonging to those several offices.
Of the several facts thus recorded, there is not one to which, in some way or other, it may not happen to have a legal operation, in manner above mentioned. So many offices, so many sources of evidence which without impropriety may be termed preappointed evidence.
The object to which the labour thus employed is principally, if not exclusively, directed, is very different from that of affording evidence on the occasion of a suit at law. But, be the object to which they are directed what it may, this is not the less among the objects to which these documents are capable of being, and in practice actually are, occasionally, if not habitually, applied.
Advantages and inconveniences incident to preappointed evidence.
Considered in a general point of view, and without reference to one more than another of the several modifications of preappointed evidence as already indicated,—the advantages deducible from it may be distinguished into those which are direct, and those which are collateral or indirect.
The direct, considering these modifications in the same general point of view, consist in neither more nor less than the effectuation of the objects already indicated under the character of ends in view—contributing on each occasion to give effect in practice to whatever rights and obligations the law has undertaken to constitute and establish. For, be the law as to its other parts what it may, the effect of it depends upon that part of it which concerns the subject of evidence.
Rules of action, expressions of will, whether of the nature of laws or legalized contracts, are capable of receiving, from the operation of apposite and preappointed evidence, advantages of a special nature, such as have no application to legally operative facts taken at large.
As between laws and contracts,—of those which apply to contracts, the catalogue, it will be seen, is the most ample.
Non-notoriety—viz. with relation to the persons whose rights and obligations are respectively affected by them—non-notoriety (including oblivion, which is but non-notoriety at times subsequent to that in question;) uncertainty in respect of their import; spuriousness, whether in toto (the result of forgery in the way of fabrication,) or partial (the result of forgery in the way of alteration;* ) incapacity, or unfair procurement in respect of their source (i. e. the condition and situation of the individual of whose will they contain the expression;) injury to third persons considered as producible by secrecy or privacy on the part of the contract,—i. e. by its non-notoriety with reference to such third persons as are concerned in point of interest to have knowledge of its existence:—such are the mischiefs to which contracts are exposed. Such accordingly are the mischiefs, in the prevention of which, the direct advantages deducible from the institution of preappointed evidence are to be looked for, in so far as contracts are concerned.
But, under the head of preappointed contractual evidence (preappointed evidence as applied to the case of contracts), these several mischiefs, in conjunction with their respective remedies (the application of which, as far as practicable—to wit, by the instrumentality of the formalities of which the essence of preappointed evidence is composed—constitutes the advantages derivable from the institution of the sort of evidence so denominated,) will be brought to view in detail.
The descriptions of persons to whose use or convenience the institution of preappointed evidence may on one occasion or another be found subservient, may be thus distinguished and designated:—
1. Individuals, considered in the character of persons invested or in a way to be invested with the rights, bound or in a way to be bound by the obligations, to the effectuation of which the article of evidence in question is calculated to be subservient: eventual parties in the suits which the institution is calculated to prevent; actual parties in those suits, if, notwithstanding the means of prevention thus employed, they take place; privies, i. e. persons respectively connected in point of interest, in some shape or other, with, and eventual representatives of, such parties; persons liable eventually to become parties in future suits, on the occasion of which it may happen to the same article of preappointed evidence to be found applicable; and the like.
2. The judge, considered as such, and in respect to the decision which he will have to pronounce on the occasion of such suits as above, when instituted.
It is in so far as persons of these descriptions, and standing in these situations, are concerned, that the uses derivable from the institution of the preappointed evidence in question may be termed direct.
3. The legislator. The manner in which preappointed evidence may be rendered conducive to the due exercise of the functions of the functionary thus denominated, will present itself in a particularly conspicuous point of view, in the case where the facts, the remembrance of which is in this way preserved, are produced by, or composed of, the transactions of the several public offices; and, still more particularly, of the transactions of judicial offices.
The uses thus capable of being made by the legislator of preappointed evidence, are those which have, as above, been brought to view under the denomination of the collateral or indirect uses; and consist in the furnishing him with data, with experience, by the consideration of which he may be enabled to render his operations in every department of the field of government, and more especially in the judicial, more and more conducive to what are or ought to be their respective ends.
Under the name of the statistics of the several departments (and in particular the department here more particularly concerned—viz. the judicial), may the branch of political science to which belongs the knowledge of facts of this description, tendency, and use, be with propriety designated.
Of the inconveniences incident to the institution of preappointed evidence, some will be found inseparably attached, in a degree more or less considerable, to the principle of the institution; others will depend more or less upon the particular mode or expedient by which the principle is pursued—the particular purposes endeavoured to be accomplished.
Delay, vexation, and expense—the inconveniences which (in a quantity varying from next to nothing, to a magnitude beyond endurance) follow in the train of every step taken by or under the authority of law—may be stated as the only disadvantages inherent in the institution under all its forms, in whatever mode the purposes of it are endeavoured to be accomplished, though in degrees dependent more or less upon the nature of the mode.
These may be ranked together under the head of general inconveniences: the particular inconveniences will stand in a clearer point of view, after the several modes or particular institutions, to which they seem respectively attached, shall have been considered.
The operations and instruments employed in the design (real or pretended) of securing, in relation to contracts and other expressions of will, the advantages derivable, as above, from the institution of preappointed evidence, seem to be comprehended under the general and generally-employed appellation of formalities.
The particular operations employed under this name seem comprisable under the following denominations, viz.
1. Scription (original scription:) viz.—expressing the meaning of the party or parties by a determinate assemblage of words, and those words made to receive permanence—permanence for any length of time that may be required: to wit, by means of the visible characters now for so many ages in general use for that purpose among civilized nations. For the importance of this operation, as applied to evidence, see above, under the head of Securities.*
2. Authentication†(i. e. declaration of the authenticity of the script in question) ab intrà. Under this head may be included whatever acts are done by a party of whose will the script purports to be the expression—done in the view of causing it to be known, that the will or conception of which it purports to be the expression is really his.‡
3. Authentication (i. e. declaration of the authenticity of the script) ab extrà. Under this head may be included whatever acts are, immediately upon the performance of some act of authentication ab intrà, done by some other person or persons, in the view of causing it to be known—not only that the will or conception of which the script in question purports to be the expression, is the will of the person of whose will it purports to be the expression—but also that such act of authentication has really been performed.*
4. Examination into the competence of the party or parties as to the entering into the contract: the examination considered as performable by the individuals by whom the act of authentication ab intrà is itself authenticated, as above. This is mentioned rather as a formality that might be used in some cases with advantage, than as one which actually has been introduced into practice.
5. Multiplicate scription, or transcription,—penning many scripts of exactly the same tenor—an operation which, as well in the way of writing with a pen as in the way of printing, has, by the exertions of modern ingenuity, been rendered practicable, as well at the same time as at different times. Whence the distinction, transcription simultaneous or subsequential.
6. Registration. This, considered as distinct from scription, means nothing more than conservation of the script or transcript, the original or the copy, in the custody and under the care of some determinate person or persons, in some appropriate repository allotted to that purpose.
7. Notification, competent and effectual; viz. communication of the script in question, including sufficient information of its tenor, as well as of its existence, to all persons concerned in point of interest so to be informed.
Such are the formalities applicable, and with little exception commonly employed, in relation to legalized contracts. Such, for the most part, are the formalities not in the nature of the subject incapable of being employed in relation to laws.
Laws, however, the direct work of a set of functionaries, all whose operations are habitually exposed to public view, are in general so circumstanced, that the operations above mentioned either have no application, or, if they have, take place and produce their intended effect as it were of course. But, in respect of three of these operations,—viz. scription, transcription, and notification,—practice will be seen to exhibit deficiencies too considerable to be brought fully to view in a work on evidence, and at the same time too important to be passed over altogether without notice.†
As to facts,—the class of facts already brought to view under the denomination of legally operative facts: of the seven distinguishable operations above spoken of, under the name of formalities, as applicable, and with advantage, to contracts, four only—viz. scription, transtription, registration, and notification—are applicable to the purpose of preserving the memory of facts thus taken at large.*
Among legally applicable facts, a distinction has already been made, distinguishing those which have come under review of official persons, occupants of the several established offices, private as well as public; inasmuch as they consist of acts done by or under the direction of those persons, or of facts which, on the occasion of such acts, were taken by them into contemplation. Scription, transcription, and registration, are operations which, in relation to facts of this description, have by the very supposition been to a certain extent performed. But, in relation to every such office, whatsoever other more direct purposes have been provided for by the extent which has happened to have been given to the mass so registered, it may still be matter of consideration, whether (to adapt it to the purpose of preappointed evidence) an ulterior extent, and in a suitable shape, might not in this or that instance be given to the mass, in such manner as to add to the services at present derived from it.
The facts and other transactions that are or ought to be preserved in remembrance under the direction of persons invested with judicial offices,—these judicial facts, together with the advantage which in various shapes might by the legislator be derived from the contemplation of them, are among the objects to which the above observation will be seen applying itself with a peculiar degree of force.†
Such being the operations capable of being applied with more or less advantage to the purpose of communicating, by means of preappointed evidence, the existence of the objects respectively in question,—by what means shall the perfermance of those several operations, in so far as they respectively promise to be subservient to that purpose, be endeavoured to be secured?
In each respective case, shall the performance of these several formalities be endeavoured to be rendered obligatory, according to present usage, by what is called pain of nullity, or by punishment in any other (and what) shape? Or, after indication given of such formalities as, in the case in question, promise, in the character of evidence, to be of use, and the doubts that will naturally be produced by the non-employment of them, shall observance be, in any and in what cases, left to the option of the parties interested?
To these questions, answers will be endeavoured to be provided, in so far as they have application to any of the several divisions that have here been made of the subjects of preappointed evidence. The subject of contracts is the only one to which they will be found to apply in such manner as to operate with practical importance.
OF INSTRUMENTS OF CONTRACT IN GENERAL.
Uses of preappointed evidence as applied to contracts.
Of the advantages or uses derivable from a due application of the principle of preappointed evidence to the case of contracts, a sort of anticipated and general view has been given already.‡ It remains now to bring them to view one by one.
These uses seem comprehendible under the following heads—the description of the use being in each instance taken, as above, from the description of the mischief, in the prevention of which it consists:—
1. Prevention of non-notoriety and oblivion; viz. with respect to the existence of the contract. A contract can no otherwise be of use, than in as far as the existence of it is known. Were it not for the art of writing, the existence of a contract might, after having been known one day, cease to be known the next.
2. Prevention of uncertainty in respect of the import of it. Writing is little less necessary to this purpose than to the former. Without a determinate set of words allotted to the expression of it, the import can never be other than indeterminate: and it is only by writing that the words can be rendered determinate, and secured as well against total oblivion as against changes.
3. Prevention of spurious contracts, and of spuriousness in contracts. When the whole contract is spurious, it is the product of forgery in the way of fabrication; when spurious in this or that part, through any other cause than unintentional error on the part of the scribe, it is the product of forgery in the way of alteration: and by obliteration, the import may be rendered spurious, even where there are no spurious words.
4. Prevention of unfairly obtained, or in other respects unfair, or say vitious, contracts. Of the different cases in which the epithets unfair or unfairly obtained, may be applied to a contract, mention will be made presently.
5. Prevention of injury to third persons; viz. such injury as might be the result of non-notoriety of the contract with reference to such third persons: for instance, a contract whereby the property of a debtor is disposed of in favour of a non-creditor, to the prejudice of creditors; or of one creditor, to the prejudice of co-creditors. This use may perhaps be considered as belonging to the class of direct uses: a contract of this description being referable to the head of unfair contracts,—unfair, viz. with reference to third persons thus exposed by it to injury.
6. Production of revenue to government.
In this, the last upon the list of purposes, we see an advantage altogether void of all natural connexion with the five preceding ones, and with the general object and use of evidence. But, when the connexion is once formed, it contributes a material assistance to those other original and direct purposes; inasmuch as the advantage derived from the institution in this point of view is carried to account, and serves to be set in the scale against whatever articles are chargeable upon it on the side of disadvantage.*
As to unfairness: various are the ways in which it may happen to a contract to have been unfairly obtained, or to be in other respects unfair or vitious: the mode of the vitiousness being determined or indicated, either by the efficient cause of the contract, or by its effects or tendency.
The following are the cases in which its unfairness or vitiousness results from the nature of its efficient cause:—
1. Undue coercion—whether physical, by bodily force applied, or psychological, by fear of undue suffering (present or future) impressed.
2. Erroneous supposition of obligation; viz. legal, or perhaps, in some cases, even though purely moral. This is in fact a case of undue coercion, though no person, other than the party himself, be instrumental in the application of it.
3. Fraud—positive fraud—on the part of another party to the contract (or of some other person acting, with or without his commission or privity, in his behalf,) operating by false representations, assertive of the eventual existence of some benefit, by which, supposing it to accrue, the contract would in so far have been rendered a fair one.
4. Fraud—negative or passive fraud—operating by silence, or say reticence, a negative act,—by non-disclosure of this or that circumstance of disadvantage, in respect of which disclosure was due.†
5. Erroneous supposition in regard to value; viz. an over-value being, in the mind of the party in question, ascribed to the thing acquired to him by the contract, or an under value to the thing parted with. Though there are many cases in which the rescission of a contract in this respect unfair might not be eligible, there are none in which the prevention of it would not be useful; viz. on the supposition that, supposing the real value known, the contract would not have been entered into.
6. Insanity: including non-age, caducity, and intoxication, in so far as productive of the same effects. It is only in so far as these circumstances are respectively productive of unfairness in one or other of the modes above mentioned, that the contract ought to be considered as rendered unfair by them.
7. Injuriousness to third persons, the public at large included; injuriousness, certain, or more or less probable; provided the amount of such injury, all circumstances considered, be preponderant over the amount of the aggregate benefit to the parties.
8. Subornation: the prospect of a benefit considered as derivable from the contract being employed by one party as an instrument of subornation, for the purpose of engaging another in the commission of some injurious act. In this case, the injurious tendency is considered as being in contemplation: in the last preceding case, it may be in contemplation or not.
It is natural to all contracts to be beneficial to all parties to them. A contract neither ought to be, nor commonly is, intended by the legislator to be legalized, but on one or other of two suppositions,—viz. that, at the time of its being entered into, it is (at least in its apparent tendency and promise) beneficial to all parties, and not injurious to any; or in a greater degree beneficial to one party, at least, than it is injurious to all others put together.
In the cases above brought to view, as cases of unfairness or vitiousness, the supposition is, that, if beneficial to one or more individuals, it is not to him or them beneficial in a degree equal to that in which it is hurtful to some other individual, or other individuals, or the public at large, put together.
In cases 1, 3, 4, and 8, blame on the part of some individual or other, naturally but not necessarily a party to the contract, is ascribed: and it is in the wrongful conduct of such individual that the unfairness of the contract has its source. In the other four cases, no such blame forms any necessary part of the case.
Formalities in use in the case of contracts.
We have seen the evil qualities, which, in the instance of contracts taken in the aggregate, are liable to have place—non-notoriety, uncertainty, spuriousness, unfairness: we have seen the different shapes in which it may happen to unfairness to present itself.
We have seen the expedients which, under the name of formalities, are in use, for the apparent purpose of affording to the parties a protection to a certain extent against these evils; viz. scription, authentication ab intrà, authentication ab extrà, multiplicate scription or transcription, registration, and notification.
Against non-notoriety and uncertainty, scription, of itself, and without any expense of thought bestowed upon the adaptation of it to those ends, affords, in a considerable (though far from a complete) degree, a remedy. Spuriousness, in the character of an evil,—authentication ab intrà, and ab extrà, in the character of remedies,—in these may be seen the objects on which the greatest expense of thought appears to have been bestowed.
Of authentication ab intrà, practice presents five distinguishable modes: 1. Autography or holography;* 2. Onomastic signature; 3. Symbolic signature; 4. Sigillation; 5. Recognition,—viz. oral, or by deportment.
1. In comparison with the three next mentioned to it, autography or holography (whichever be the word employed) presents, as against spuriousness, by far the best security. Men (say the English law books) are distinguished by their handwriting, as by their faces. Whosoever be the penman, his handwriting presents (as long as the paper or other substance, and the colour or other marks imprinted on it, last) a sort of real evidence, a species of circumstantial evidence, of his identity; and, so far, of the genuineness of the script. Spuriousness in toto is the only modification of spuriousness to which the security afforded by any of the three other modes of authenticity applies: against spuriousness pro parte, this alone presents a remedy; except that, in case of falsification by simple erasure, holography taken by itself has but little application, inasmuch as, in case of cancellation or abrasion, hands are not distinguishable.
But in some cases this most effectual mode of authentication is physically, in others deemed prudentially, impracticable: physically, as where, in case of a single contracting party (as in case of a last will,) the party is by want of skill, or by debility, rendered unable to write; and moreover, wherever there are contracting parties more than one—unless the task were divided, each for example writing those clauses and those alone, in and by which himself were bound: prudentially, viz. the vexation (the trouble of writing) being more than the party in question chose to submit to.
2. In the onomastic mode of signature may be seen the succedaneum so naturally resorted to, where—ability, sufficient at least to the writing of the words that enter into the composition of the man’s name, not being wanting—holography has, in any of the ways just mentioned, been rendered impracticable.
3. In the symbolic mode of signature may be seen the succedaneum resorted to, where even the degree of ability necessary to the use of the onomastic mode is deficient.
But in this mode, whatever security is afforded by the two other modes (viz. against spuriousness pro parte as well as in toto by the holographic, against spuriousness in toto by the onomastic) is manifestly wanting: a cross (the usual mark) a cross made by one man not being distinguishable from a cross made by another, the real part of evidence has no place. Recognition, viz. by deportment, is the only way in which this mode of authentication can be said to operate.
4. Sigillation, a succedaneum to (or rather mode of) onomastic signature, was the mode in use in those times of barbarism, when, even among persons of rank, skill adequate to so much as onomastic signature was rare: and so much less attainable for any forbidden purpose was the art of the engraver than the art of the ordinary scribe, that the mode thus substituted was, in the character of a security against spuriousness in toto, but little inferior to the mode to which it was substituted.
At present, and since the art of writing has become comparatively common, sigillation, in the character of a source of real evidence, has gone completely out of use. The coat of arms—that substitute for a name, invented for the use of those who could neither read nor write—might in this way be not altogether without its use. But even this is not employed, except by accident.
Sigillation, at one time an efficient and almost the sole security against fraud, has for this long time past degenerated into an idle and mischievous ceremony;* answering no other purpose than that of recognition, for which the oral mode might and does serve equally well without it.
5. Recognition,—viz. oral, or by deportment.
When the modes (or any of the modes) of authentication already enumerated have been employed, little good, it should seem, could be done by superadding this operation. They all of them suppose and include in themselves an act of recognition.
That, in the instance of an instrument purporting to contain an expression of my will, it should be put out of doubt that my will has been completely and determinately formed, is a result unquestionably to be desired: but when an operation performed by permanent signs has been already performed, and applied to that use, how an operation not performed by other than evanescent signs is capable of affording any additional security, does not seem easily perceptible. In the case of onomastic signature, the act of writing the name serves not only the purpose of recognition by deportment, but that of real evidence—permanent circumstantial evidence; and as to symbolic signature, though, as above, it is scarcely capable of serving the purpose of real evidence, yet either it answers, and of itself, the purpose of recognition (viz. recognition by deportment,) or it means nothing, and answers not any purpose.†
Recognition, if performed by oral discourse, or by two out of the four modes of authentication which have been enumerated (symbolic signature and sigillation,) requires the presence of at least one other person in the character of a percipient witness, to see or hear it, so that eventually, on a judicial inquiry, in the character of a deposing witness, he may narrate it.
Authentication ab extrà,—viz. by attesting witnesses, is therefore the only mode in which the authenticity of an instrument of contract can be proved by direct evidence. Without such additional proof, the fact of the authenticity will have no other basis to rest on than what, as above, is constituted by the circumstantial, the real evidence.
But, since significant onomastic seals have ceased to be in use, it is only in the case of those who are able to write that this real proof of authenticity can have place: and even while significant seals were in use, forgery by fabrication of that species of evidence, though but few were capable of so much as attempting it, might with less danger of detection be executed by any of those few, than any imitation by one person of the handwriting of another.
A person in whose presence a party, while performing in relation to any such instrument an act of recognition (oral or by deportment, as above), is seen or heard to do so, acts thereby, whether so required or not, in relation to such act of recognition, in the character of a percipient witness: and, so long as he is in existence, in a state of sanity, and forthcoming, so long there exists a person by means of whose testimony the intrinsic authentication of the instrument in question is capable of being proved by direct evidence.
By the simple perception thus obtained, an additional security is unquestionably afforded: but, if the process of authentication be moreover performed by such percipient witness, the security receives thereby a manifest increase.
1. Although the signature be but symbolic,—yet, if sufficient measures be employed (as they always might be and ought to be) for securing a mode of intercourse with such attesting witness, for the purpose of his eventual forthcomingness in the character of a deposing witness, it will thereby secure to the parties and their representatives the benefit of his direct evidence (the accidents of expatriation and exprovinciation and insanity apart) during his lifetime.
2. If the signature be onomastic,—in that case, to the benefit of his direct testimony is added that of the circumstantial real evidence afforded by his handwriting; and that neither defeasible by death, nor by any of the accidents just mentioned.*
OF THE ENFORCEMENT OF FORMALITIES IN THE CASE OF CONTRACTS.
Absolute nullity in general an improper means of enforcement.
The benefit derivable from preappointed evidence depends upon the observance of the formalities, of which its essential character, as contradistinguished from casual evidence, is composed: which formalities are all comprisable under two heads,—viz. writing, and authentication. In proportion to the magnitude of that benefit, considered in its application to the several classes of legally operative facts to which that application extends, it is therefore desirable that, in so far as is practicable (prudentially as well as physically practicable,) these formalities should on each individual occasion be employed.
By what means, then, shall the employment of them be secured? In other words, by what means shall the non-employment of them be prevented?
Consider the non-employment of them in the light of an offence—an offence for which the public, in the persons of the parties, any of them, or any other person, is exposed to receive injury,—punishment would, in this as in other cases, afford the natural and obvious remedy.
But delinquency is here altogether out of the question: the evil of punishment is an evil, the application of which would, in this case, be altogether without use. In the case of a contract, be it of what kind it may, there is always some one person at least, whose interest and whose wish it is that it may be followed by the effect it professes to aim at: its not being followed by that effect is, in his eyes, an evil: such he cannot but understand will be the result, if the memory of it should perish, or the import of it be in such or such a way misconceived. But, to the prevention of that undesirable result, the formalities in question (viz. writing in apt terms and sufficient authentication) are, if not in every case absolutely necessary, at any rate in every case highly and obviously and indubitably conducive. Will, therefore (to give birth to which is the function and sole use of punishment,) cannot here, in the nature of the case, be ever wanting. Of the conditions requisite to the production of the desirable result, the only one liable to be deficient is power, and in particular that branch of power which consists of knowledge.
On these occasions, for securing the observance of these formalities, the principle of nullity, pain of nullity, as in the language of French lawyers it is styled,† is the moving power that by legislators, under the guidance of professional lawyers, has been commonly, not to say universally, employed: pain of nullity, applied in the character of an inducement, a motive, to the will: to the will, a faculty which requires no such factitious moving power; a moving power abundantly sufficient, so far as mere will is concerned, operating by the very nature of the case.
Considered in the character of a means directed to an end, and that end the giving effect to genuine and fair contracts, and those such as it has been the declared intention of the legislator to adopt and give effect to by his coercive power, nothing can be more unconducive and inconsistent, not to say treacherous, than the expedient of nullity, employed as hitherto it has been employed. The mischief, the prevention of which is professed to be in view,—the mischief, one great branch of it at least, is the frustration to which, for want of the securities in question (or some of them,) fair and genuine contracts are exposed: the destruction of all benefit expected from such contracts, the substitution of the pangs of disappointment to the exultation of success. To prevent this mischief, is one at least of the professed ends in view: and what, in the case in question, are the means employed? The giving birth to the mischief in cases in which it would not otherwise have had place.
Should any one be disposed to justify this, it is only in one or other of two characters that he can think of justifying it.
Is it in the character of a penalty, designed to prevent the evil in question, viz. frustration of fair and genuine contracts?—But the penalty involves (as already observed) the production of this part at least of the very evil which it professes to prevent.
Is it in the character of a conclusion, an inference, drawn from the circumstances of the case; the non-observance of the formalities in question being considered as circumstantial evidence (and that conclusive) of the existence of one or other of the two vices incident to supposed contracts, viz. spuriousness or unfairness?
But, to take the case of spuriousness, and to consider the non-observance of these formalities as circumstantial evidence of this vice, and this evidence conclusive—conclusive not only without any support from direct evidence, but against and in despite of any how large soever a body of direct evidence;—no inference can be more unwarranted, more directly in the teeth of a most extensive and notorious body of experience. Of contracts in any way spurious, experience affords, in comparison, but few examples; while of genuine contracts, which are neither committed to writing nor authenticated, but which are nevertheless fair, and fairly fulfilled, on all sides, the number is beyond comparison greater (taking together those of small and great importance) than the number of those which, being committed to writing, are at the same time duly authenticated in form of law.
Not that nullity is in its own nature incapable of being rationally and beneficially employed; for, though it cannot in any case fail of being mis-seated and inconsistent when considered in the character of a penalty, there are cases in which—there are conditions on which—it may be just and reasonable, and thence beneficial, in the character of an inference. But everywhere, under the dominion of the technical, the fee-gathering, system of judicature, these conditions, so necessary to general utility and justice, remain, as naturally they could not but remain, unfulfilled.
The conditions thus spoken of are as follows, viz.—
1. That knowledge of the formalities in question, and of the necessity of the observance of them to the validity of the contract, should be present to the mind of every individual to whom it can happen to be desirous of entering (he at the same time having power and right to enter) into such contract;
2. That observance of these formalities be in his power; and
3. That observance be not too burthensome; i. e. the burthen so great as that, taking all the instances of observance together, the aggregate of the burthen attached to them shall outweigh the aggregate of whatever benefit in any shape results from the observance.
Of these three several conditions, let the two first be fulfilled, the nullity of the contract is, in case of the non-observance of the formalities, a rational result, in the character of an inference. The character of them is such, that, unless it be in the way of preponderant delay, vexation, and expense, an honest man, in the character of a contracting party, cannot be hurt by them; he cannot but be benefited by them: while, to the contriver of a spurious contract, observance will be, at any rate, difficult, and, without detection and frustration, it is hoped, impracticable.
Of these same two conditions, let either fail to have place,—nullity, i. e. spuriousness or unfairness, as an inference, will be manifestly groundless. With what colour of reason can you expect a man to pay observance to formalities, to perform a variety of acts more or less burthensome, when neither the inducement for performing them, nor so much as the idea of them, was present to his mind? What inference to the prejudice either of the genuineness of the alleged contract, or of the fairness of it, can in such a case be grounded on non-observance?
So, again, in regard to power. With what colour of reason can you call upon a man to do what he has not power to do? With what colour of justice can you ground any inference whatsoever on his not doing it?
But, let both of these conditions be fulfilled, the spuriousness or unfairness of the contract may not unreasonably be inferred from non-observance of the formalities. A rational man will not enter into a contract of the terms of which he stands assured that, of whichever of them are regarded by him as beneficial to himself, the benefit will not take place: an honest man will not enter into a contract, of the terms of which he stands assured that, of whichever of them are beneficial to whatever other persons are concerned in point of interest, the benefit will not take place. Therefore the alleged contract is either no contract at all, or it is an unfair one: the will alleged to have been expressed never was expressed, or it is such a will as (the consequences of giving effect to it being preponderantly or purely mischievous) ought not to be suffered to take effect.
As to the remaining condition,—viz. that the burthen of observance of such formalities as are prescribed be not too great,—on the part of the legislator, the non-fulfilment of this condition amounts in effect to neither more nor less than the disallowance of every contract, in the instance of which the observance of the formalities in question comes to be regarded as too burthensome. To prescribe this condition is neither more nor less than to give a warning to the legislator, that, in the observing of his formalities, he pitch not upon such by the adoption of which any such contract as he meant to allow should in effect be disallowed.
Unhappily for legislators as well as subjects, the prostrate negligence with which all these important duties, and in particular the indispensable one of promulgation, have been universally violated by the possessors of sovereign power, is hitherto the only matter of fact that is notorious in the case.
As with other parts of the law by which the fate of every man is disposed of, so it is with this. They tell him he ought to know it; they say of him that he does know it; they give him no means of knowing it; they see he does not know it; they do nothing to make him know it; they do every thing to keep him from knowing it; they have brought it into a state in which it is impossible for him to know it; they say it is; they insist that it is; they say his ignorance of it is no excuse; and, in all imaginable ways, they punish him for not knowing it.
By no military commander was it ever supposed, so much as for a moment, that, by keeping his orders in his pocket, or mumbling them to himself, or laying them up with a houseful of other orders upon a shelf, where any man that chose to pay for them might have them, he could hope either to gain an advantage over, or so much as defend himself against, the enemy.
By no master of a family, by no old woman, mistress, or housekeeper of a family, was it ever so much as supposed, that, by any such mode of promulgation (if promulgation it could be called,) the daily and hourly business of any the most inconsiderable private family could ever be carried on.
Conceits to any such effect—chimeras, supposable for illustration’s sake, like any other chimeras, but never yet realized in practice—would, if they came to be realized, be regarded as marks, not of unskilfulness, but idiocy.
Every law requiring a man, under a penalty, to do that which is not in his power,—every such law, come it from whence it will, is an act of tyranny. Pure suffering—suffering without benefit—pure evil—is the fruit of it.
Every law unpromulgated is, moreover, an act of tyranny. For as well might it be out of a man’s power to do an act, as out of his knowledge that he is called upon to do it. To every human act, motives, as well as means, are necessary: as well might a man be without the means as without a motive. In this case, therefore, no less than in the other, pure suffering—suffering without benefit—pure evil—is the result of such a law.
Every law insufficiently promulgated, is an act of tyranny as towards all those in whose conception and remembrance, by reason of such insufficiency, it fails to have implanted itself.
Nebuchadnezzar dreamed a dream: he told it to his wise men, and said to them, tell me what it was, and what it signified. Those whose interpretation did not satisfy him were put to death. A specimen this, sufficiently strong, one should have thought, of oriental tyranny. But the men thus called upon to interpret mystery, were select men—men selected for their wisdom. The Nebuchadnezzars of modern times impose a still more difficult task—and upon whom? Upon all mankind without distinction: and, in this case as in that, not the meaning of the dream, but the very dream itself, is the mystery they are called upon to divine.
Legislation—genuine legislation—has her trumpet: instead of a trumpet, the law of jurisprudence employs a sword—a sword, or a rod: such, and such alone, are the instruments of promulgation that ever are or can be employed by what is called common law.
Punishment instead of instruction—punishment without instruction, without warning;—such is the form in which the law of jurisprudence gives all its lessons.
When a man has a dog to teach, he falls upon him and beats him: the animal takes note in his own mind of the circumstances in which he has been beaten, and the intimation thus received becomes, in the mind of the dog, a rule of common law.
Such is the law—such the unpunishable, and even inevitable, yet not the less grievous and deplorable, tyranny, to which, through the whole extent of the law of jurisprudence, the legislator abandons the community entrusted to his charge. Men are treated like dogs—they are beaten without respite, and without mercy; and out of one man’s beating, another man is left to derive instruction as he can.
The injustice which, in every case of an unobservable or unpromulgated law, stains the conduct of the legislator, is, in the instance of the particular sort of law with which we are at present concerned, aggravated by a sort of treachery—by the breach of an engagement, which, though not declared in express words by the legislator, is not the less clearly understood and acted upon by the subject.
Unless things be so ordered that every one shall know what formalities are required,—every law, or rule of law, imposing, on pain of nullity, the necessity of complying with any such formality, is a breach of faith on the part of the ruling power. The mischief produced by it is of the same sort as that produced by breach of faith on the part of any individual: and, supposing the amount of the loss the same in both cases, the mischief is the same in magnitude. The difference is, that, in ordinary cases of breach of faith, the man of power is prepared to administer satisfaction for the injury; whereas in this case it is the man of power himself who is the prime author of the injury: the individual who, by the invitation of the man of law, comes in and reaps the profit, is but the accomplice.
By a general rule, the power of the law is declared to hold itself at all times in readiness to lend a binding force to the engagements and proprietary dispositions made by individuals. This rule or maxim, taken in the form of generality and simplicity in which (as above) it stands expressed, may, without much violence to fact, without much danger of incorrectness, be said to be known to every adult individual of sound mind: for there can scarcely be any such individual, to whom the knowledge of a rule of law to that effect has not been repeatedly presented by his own particular observation or experience. This law, however, neither is actually enforced, nor consistently with general utility could be enforced, till after having been narrowed in its extent by a variety of exceptions and limitations. Of the particular rules establishing these several exceptions—of the several particular laws annulling pro tanto, and repealing (as it were) to a certain extent, the force of the general law,—some will be reasonable, i. e. conformable to the principle of utility; others, under the hitherto imperfect state of the science, under the hitherto imperfect application of that sovereign principle, will be unreasonable. But of those of which the abstract reasonableness is most indisputable, the practicable reasonableness and actual utility will depend, if not altogether, at least in a great measure, on the fact of their being actually known—actually present to the mind of him on whose lot they take upon them to decide. For, as hath already been observed, the general rule, though (such hitherto has been the negligence or incapacity of legislators) perhaps in no code of laws consigned to any express form of words, is actually and at all times present to the mind of everybody: I mean so far as it is in the nature of things that a proposition floating as it were in the air, without any determinate assemblage of words to anchor it to, should maintain its hold upon the public mind. Here, then, is a general promise, understood by everybody to be made to everybody by the law. If in any case there exists, in virtue of a particular exceptive law, a known exception to that general law—a disposition made by the law in conformity to that exception, neither does involve, nor, by anybody to whom the existence of the exceptive law is known, is supposed to involve, a breach of promise. But to any one to whom the existence of the general rule is known, and the existence of the exceptive law unknown, every decision contrary to the general rule and founded upon the exceptive law, does involve a breach of the implied promise made by the general rule: just as much as a similar decision would do, if the exceptive law had no existence.
The non-promulgation of the rule of action, by which the individuals composing the community are all of them commanded to regulate then conduct, is the grand device of the fee-fed legislating lawyer, for the increase of lawyers’ profit by increase of transgressions.
Over and over again I have had occasion to state it as a standing and natural and universal object with the legislator, acting under the guidance of the fee-fed lawyer, or rather with the fee-fed lawyer under whose guidance the legislator is in the habit of acting without thought,—so to order matters, that, for want of knowledge of the considerations which call for compliance, transgressions of all sorts may, on the part of the several members of the community, be as numerous as possible: to the end that, by the hands of fee-fed advocates and attorneys, satisfaction or punishment for transgressions real or pretended, may, in as many instances as possible, at the expense of those who have wherewithal to defray the expense, be demanded at the hands of fee-fed judges.
In the pursuit of this general and all-embracing object, is implied the pursuit of as many specific or less general objects as are comprised in it.
1. That,—as to any really existent rule of action and measure of obedience,—there should, to the greatest extent possible, be no such thing; but, under the notion of a transgression against a rule of what is called common law (a mere nonentity,) men should in as many instances as possible, under the name of punishment, or satisfaction, or compensation, or damages, be plagued as if a portion of law to that effect had been enacted and made notorious.
2. That, in so far as portions of real law were really enacted, they should be kept as effectually concealed as possible from those whose lot was made to depend on the observance of them, and who, in manner above mentioned, and to the ends above mentioned, were to be plagued for non-observance.
3. That, in regard to contracts legalized, or professed to be legalized, the following should be the measures taken for rendering transgressions of the real or supposed rule of law as numerous as possible:—
That, in respect of quantity and quality of matter, the language should be as effectually adapted as possible to prevent the formation of correct conceptions, and to give rise to incorrect ones:
That if, upon the footing of the instrument of contract taken by itself, the conceptions formed in relation to it were clear and correct, such conceptions should be rendered ultimately erroneous, by concealed rules of law, real or pretended, requiring a different interpretation to be put by the judge upon the words from which such clear and correct conceptions shall have been deduced:
That, by sometimes confirming and allowing and giving effect to, sometimes disallowing and frustrating, an engagement endeavoured to be taken or a disposition endeavoured to be made by a contract to such and such an effect—(or, what comes to the same thing, sometimes assigning to it the meaning supposed to be meant by the parties to be assigned to it—sometimes assigning to it some other meaning—any other meaning at pleasure—not so much as pretended to be assigned to it by the parties, or any one of them;) the judges should establish themselves in the habit, and thence, to the greatest possible extent, in the power, of determining the matter in dispute in favour of the plaintiff’s or the defendant’s side of the cause at pleasure:
And that, the existence of a rule to this or that effect being throughout supposed, and punishment or vexation, under the name of nullity, being predetermined in case of the non-observance of it,—and the supposed rule being (as above) either not so much as made, or if made, kept in a state of concealment,—such operations, and such alone, should be directed and employed under the notion of giving notice of the rule (i. e. causing it to be made present to the minds of those who were to be punished or otherwise vexed for non-observance of it,) as would in as many instances as possible fail of being productive of the effect so professed to be aimed at.
Means of ensuring the notoriety of the formalities, and of the consequences of their non-observance.
Such being the conditions proper to be observed by the legislator—the conditions necessary to the reasonableness and utility of whatever formalities he prescribes,—and the fulfilment of those conditions being in each instance within the power of the legislator,—it remains to be shown by what means the observance of those conditions may most advantageously be accomplished.*
Were any other than improbity—general improbity (the necessary result of sinister interest,) the ruling principle that presided over that part of the rule of action which concerns contracts—had common honesty, under the direction of common sense, been the ruling principle,—the arrangements which now wait to be brought to view could never have waited to this time.
When, on the part of the governing members of the community, upon whose will the fate of the rest depends, there exists any real desire that the knowledge of, and with it the possibility of bestowing observance upon, those rules for the non-observance of which the community are in such a variety of ways tormented, should have place,—they never are, nor ever can be, at a loss for effectual means.
As often as the statesman to whose office it belongs to devise taxes, has devised and obtained the imposition of a new tax, knowledge of this obligation is never wanting to those on whose knowledge of it the fulfilment of it depends. Why? Because, of him by whom taxes are thus devised, it is the real desire that the payment of the taxes, and consequently the knowledge of their enactment, should be as universal as possible.
Under the presidence of the lawyer, on whom the state of that part of the law which concerns contracts (not to speak of other parts) depends, knowledge of all obligations established by that branch of the law has all along been, and will continue to be, as scanty and deficient as it can be made to be. Why? Because, of this lawyer, as of all others, it ever has been, and (so long as the fee-gathering system continues) will continue to be, the interest, that, in relation to this part of the field as well as every other, the state of the law shall, as long as possible, continue to be as adverse as possible to every end of justice.
1. Let each species of contract which on pain of invalidity is required to be committed to writing, be, on the same pain, required to be written on a particular species of paper, which, in consideration of its destined use, may be termed (by a general appellative) contract paper, or contract promulgation paper.
2. For each distinct species of contract, let a distinct species of paper be provided, denominated according to the species of contract for which it is intended to serve; as for instance, marriage-contract paper, agreement paper, farm-lease paper, house-lease paper, lodging-lease paper, house-purchase paper, money-loan-bond paper,* and so forth.
3. Let a complete printed list be made by authority, of the several species of contracts for which such promulgation paper is required to be employed: and let this list, accompanied by a notice of the obligation of employing for every such species of contract the species of promulgation paper appropriated to it, be hung up in some conspicuous part (such as the inside of a window looking to the public street) of every government office throughout the country: for example, in England, every post-office, excise-office, and house where stamped paper is sold: to which might be added, some conspicuous part of every place of divine worship, as in the case of the table exhibiting the prohibited degrees of marriage.
In the form of a border to the sheet of paper, or at the back of it, or in both places, and (according to the quantity of matter) either at length, or in the way of reference to a separate printed sheet or number of sheets,—let an indication be given of so much of the law, as concerns the species of contract, to the expression of which the paper is adapted.†
Such matter of law as seems applicable to every species of contract, seems comprisable under the following heads, viz.—
1. Modes of authentication allowed, and either prescribed or recommended, for the prevention of spuriousness, whether total or partial.
2. Indication of the different circumstances by any of which the contract in question would be rendered unfair: coinciding with, or including, those by which any contract whatever would be rendered unfair, as above. A circumstance by which, in the instance of each particular species of contract, the entering into it is rendered unfair, is, the contracting parties being, any one of them, incapacitated by law from entering into a contract of that description.
3. Obligations and rights incidental and adjectitious to the species of contract in question: obligations and rights which the law has thought fit to annex to those which are in their nature inseparable from the species of contract designated by that name; distinguishing between those which take place of themselves, without the happening of any fresh incident over and above that of the entrance into the contract, and those which are made to take place respectively upon the happening of such and such incidents: and in both instances specifying those obligations (if any) from which the law permits not one contracting party to be released by another.
4. Circumstances by which the obligations and rights, as well principal and essential as adjectitious, established by the species of contract in question, are respectively made to cease.
5. Where the contract is in its nature to such a degree simple as not to admit of any diversifications other than such as are capable of being expressed by the filling up of a few blanks, let a form for the contract be given in terminis, leaving only blanks, such blanks as are requisite for the expression of the individualizing circumstances‡ peculiar to the individual contract in each instance.
6. When the contract is not in its nature to such a degree simple, let an expository or interpretative view be given of such terms as are most apt to be employed in the expression of a contract of the description in question.
7. Let an intimation be given that the contract, as expressed on the face of the written instrument, cannot, either in the way of addition, subtraction, or substitution, receive any amendment by oral discourse: but that any such amendment may at any time be made by the same party or parties (provided their respective rights in that behalf have not been extinguished by any intervening incident,) viz. either in a different instrument, or, so the process of authentication be reiterated, in the same.
What a blessing to the subject, if, upon his entrance into each condition in life, the law would thus condescend to render it possible for him to be acquainted with the benefits and burthens she has annexed to it! If, on receiving their mutual vows at the altar, the bride and bridegroom were to be presented by the priest with the code of laws indicative of the rights they had been respectively acquiring, the duties, actual and contingent, they had been taking upon them! If, upon the entrance of a guardian upon his guardianship, the protector, and the infant committed to his protection, were at the same time, by the hand of some proper magistrate, put into possession of the list of their reciprocal rights and duties! If, on the binding of the apprentice, the three parties to the contract—the master, the apprentice, and the father, or the person occupying his place—were to find, each of them, at the back of his copy of the instrument of indenture, the authentic indication of the powers, rights, and duties, attached to the character he had just been putting on!
Always understand, that, the object being to prevent and not produce surprise, though the formal delivery of the code might follow upon the signature expressive of the entrance into the engagement, the reading of the code to or by the parties interested should precede it.
Extend the same observation to the case of partnership—the law of insurance—especially maritime insurance. How light would be the task of putting together the provisions of the law as they stand at present (with or without improvements) relative to any or all these subjects, in comparison with the labour bestowed upon this single work! Ordinary talents—I had almost said talents not superior to those of the worst informed compiler of the law-compilations with which the science is provided—ordinary talents at any rate, would, if invested with the powers of the sceptre, do more towards the rendering the substance of the law fixed and known, than could be done by the most perfect talents unfurnished with these powers.
Happily, neither models for imitation nor marks for avoidance, each in perfection, would be wanting to the hand to whom this beneficent office should be committed. The digest made by Lord Chief Baron Comyns may be mentioned in the first of these characters—an act of parliament constructed according to the present form, in the latter. In the former, not a syllable of surplusage: in the latter, the major part of the text composed of surplusage; and the greater the profusion of surplusage, the greater the quantity of surface exposed to flaws and defects.
Note of suspicion, a proper substitute to nullity.
By the above expedients, or others (according to the circumstances of the country in question) selected in the same view, one of the three conditions above mentioned, viz. communication of the necessary information, may effectually be provided for.
This being supposed, whether the non-observance of this or that formality shall be made obligatory, in such sort that from the non-observance of it the invalidity, the nullity, of the contract, ought to be inferred, will in every case depend upon this question—viz. whether, in the instance of the party or parties in question, observance was in their power.
Before he can come to a just determination on this question, it will be necessary for the legislator, in the instance of each species of contract, to consider the nature of the species of contract, the nature of the formalities proposed to be rendered in this way obligatory, and the condition of the place (the portion of territory) in question, at the time in question, with a view to the facilities the place affords at that time for the observance of those formalities.
Formalities which it will not in general be in the power of the parties to observe, a tolerably provident legislator will not choose. But what may happen is, that formalities which in general are capable, may in this or that particular instance be by accident rendered incapable, of being observed.*
On the supposition that the formalities prescribed are such as no accident can prevent the parties from having it in their power to comply with, and in time,—viz. within the length of time after which either the entrance into the contract would be impracticable, or the benefits that might have resulted from it no longer attainable;—on that supposition, and that alone, nullity may be established in the character of an article of circumstantial evidence, and that conclusive, of spuriousness or unfairness.
On the supposition that these same formalities are such as will in general be capable of being observed, but of which the observance may by this or that rare accident, in this or that particular case, be rendered impracticable;—on that supposition, non-observance may still be established in the character of an article of circumstantial evidence of spuriousness or unfairness, but not conclusive:—probabilizing either spuriousness or unfairness, but not probative with respect to either vice.
In each case, it ought to be stated, as what will naturally be expected of any one by whom the genuineness and fairness of the contract is contended for, that he shall make it appear, by the irresistible power or influence of what circumstance the observance of the formality or formalities was prevented. But, considering that, by length of time or accident, the memory of the circumstances that accompanied the transaction may have been obliterated (especially when the contracting parties are any of them dead, or otherwise not forthcoming,) such explanation ought not to be insisted on as a condition universally and peremptorily indispensable.
But in no case ought the circumstantial evidence of spuriousness or unfairness to be deemed conclusive, in such sort as to be considered as a ground of nullity, unless,—by him who, on the ground of spuriousness or unfairness, demands the nullity of it to be pronounced,—a persuasion, or at the least a suspicion, of its spuriousness or unfairness be asserted; the veracity of such declaration being provided for by the ordinary securities:—except when injury to third persons is the cause of unfairness and ground of nullity.
By the declaration thus proposed to be required, many a fair and genuine contract, and in particular many a fair will, would be preserved, which now, under the encouragement given by lawyers to the species of improbity in question, is defeated. Many a man, who, now that the advantage tendered to him by the improbity of lawyers is to be had as it were gratuitously, embraces it without scruple, would never have sacrificed his reputation for veracity and sincerity for the purchase of it.
Of the application thus made of the principle of nullification to contracts, the sole object, when that object is an honest one, is to preserve men from being injured by unfair or spurious contracts. Whether the formalities have or have not been observed,—if the fairness as well as the genuineness of the contract in question is out of doubt, even with him whose interest, were it either unfair or spurious, would be injured by it,—the only reason that could have called for the defeating of it has no application: the reasons which called for the effectuation of it remain in full force.
By the mere circumstance of indicating the want of the prescribed securities in the character of a ground of suspicion—of an article of circumstantial evidence having the effect of rendering spuriousness or unfairness more or less probable,—such an inducement for observance will be afforded, as will,—in the ordinary course of things, and (in a word) whenever the observance of the formalities in question is not physically or prudentially impracticable,—be sufficient (adequate motive, as above, always supposed) to secure their observance: especially if, the assistance of a professional adviser being called in, non-observance is on his part rendered matter of delinquency.
An expectation to this effect seems to have received the confirmation not only of general reason, but of particular experience. In no instance has the non-observance of the formalities framed by Dr. Burn, and annexed to his work on the office of a justice of the peace, been prescribed on pain of nullity. Yet, how general the recurrence to these forms has been, experience testifies.*
By placing the non-observance of the formalities in question in the light of an article of circumstantial evidence, probabilizing, and not proving, spuriousness or unfairness,—the prescription of these formalities seems to be placed on its only rational and honest ground: no such spectacle is presented as that of the legislator, in the character of an arbitrary and perfidious despot, violating in detail, and as it were by stealth, the engagements he has entered into publicly and in the gross; or, what is worse,—where the engagements thus taken have been taken by the legislator himself, as in the case of statute law,—the judge presuming thus to break the faith plighted by the legislator, and the legislator regarding with an eye of connivance, perfidy thus aggravated by anti-constitutional insubordination and usurpation.
When, availing himself of the non-observance of any of these arbitrarily instituted formalities, a man derives to himself a benefit by invalidating a contract entered into by himself—a deficiency in moral honesty on his part is generally and justly regarded as unquestionable. Even where the contract thus invalidated by him, is a contract to which he is not a party, no objection being to be made to it but that his interest is without any injury disserved by it, as in the case of a last will,—probity on his part is at any rate regarded as somewhat lax. By the legislator who sets up, though in the legitimate form of statute law, such grounds of nullity,—much more by the judge, who, without authority from the legislator, institutes them in the way of ex past facto law,—premiums are offered for improbity: the taint of corruption is diffused into the mass of the public morals.
FORMALITIES, WHAT PROPER, AND IN WHAT CASES?
In what contracts ought scription to be required?
In the instance of what contracts shall scription be made requisite?
In the adjustment of the answer, divers circumstances will require to be considered:
I. The importance of the contract;—viz. taking for the measure of the importance, generally speaking, the amount of the damage (estimated in money) that might result from the non-fulfilment of it.
Some sorts, however, there are, to which this measure could not apply. Such are those by which domestic condition in life is made to begin or cease: such are, for example,—
1. The marriage-contract;
2. Contract by which an apprentice is bound to a master or mistress;
3. Contract by which a guardian is appointed to a minor.
II. The natural complexity of the contract, as estimated by the variety of the obligations and rights of which it is productive,—whether absolutely and in the first instance, or eventually on the happening of such and such events.
The above may serve as examples of contracts to which a considerable degree of complication naturally attaches.
III. The state of the place in question, in respect of the proportional number of the inhabitants skilled in the art of writing, and the facility of obtaining the materials necessary for writing: in particular, the promulgation paper, if any such paper, appointed by authority for the species of contract in question, exists.
Suppose a number of persons out upon a long journey by land or water, and either none of them able to write, or none of them provided with materials for writing. It would be an unnecessary and improper hardship to say, that, amongst a number of persons so circumstanced, let the journey last for ever so great a length of time, no binding contract of any kind should take place.*
Use of attesting witnesses.—A notary should be one.
Three distinguishable advantages seem to result from the practice of having recourse to the assistance of attesting witnesses:—
One is, the additional security thus afforded for the fairness of the contract.
But for this security, persons whose mental frame is weak, whether rendered so by age or bodily infirmity, would remain exposed in no inconsiderable degree to the danger of being brought to enter into contracts to any degree disadvantageous, by physical force or intimidation.
2. So, again, for the genuineness of the instrument of contract—at any rate as against fabrication in toto. But the chief use of it in this respect is confined to the case where the instrument is not in the handwriting of him who is bound by the obligation constituted by it: the security afforded by that circumstance being of itself so very considerable.
The uses of authentication ab extrà (viz. by attesting witnesses) being to support the contract,—while the witnesses are alive and producible, by direct testimony—when they are dead, or otherwise unproducible, by the circumstantial evidence of their handwriting in these uses may be seen the objects by which the choice of witnesses ought to be guided.
If it be required that witnesses more than one be employed in the character of attesting (i. e. percipient and signing) witnesses,—one of them at least ought to be that sort of person, who, as long as he lives, is likely to be forthcoming, and whose handwriting is likely to be extensively known. And, be he who he may, care should be taken on the face of the instrument to give a description of him, so formed, that, so long as he is in being, there may be no difficulty in finding him out—that, when deceased, his decease may be notorious, or easily ascertainable—and that, for both purposes, the individual may be easily and certainly distinguishable from every other.
These circumstances either concur of themselves, or might easily be made to concur, in the person of a notary: which, in England (where, except in the limited case of the notary-public, no persons but attorneys act in the character of notaries,) is as much to say, in the person of an attorney.*
For reasons already given, it were too much for the law to say, that, by non-attestation by a notary, a contract shall be invalidated; since, in some contracts more especially, cases may happen, in which the assistance of any person in the character of a notary may not be to be had in time, or not without preponderant inconvenience in the shape of delay, vexation, and expense.†
But, what the legislator may very well do, is (at any rate in the case of all contracts that have any intricacy in their nature) to recommend that the assistance of a notary be called in;—directing, moreover, that the absence of such assistance be regarded as a ground of suspicion by the judge.
And what in this same view the legislator may do without difficulty, is, to ordain, and that under a penalty, that wherever a notary is employed in any way in the preparation of an instrument of contract, he shall write his name and description, according to a preappointed form, in some appointed part of it.
By an arrangement thus simple, various and important advantages would be derived:—
1. Here would be an attesting witness, always producible during his lifetime in the character of a deposing witness; his decease always easily ascertainable; his handwriting generally cognizable; his identity easily and certainly determinable.
2. Here would be a person of a responsible condition in life, answerable for any circumstance of improbity apparent on the face of the contract itself, or otherwise known to, or discoverable by him.
3. So likewise for any improbity in his own conduct in relation to the business.
4. So likewise for any injury that might befal either parties or third persons, by reason of unskilfulness or negligence on his part.
Use of a notary for securing the propriety of the contract.
Be the contract what it may, four things are desirable in respect to it:—
1. That no such contract be entered into by any individual by whom in the judgment of the legislator it is not fit that such contract should be entered into, and whom the law has accordingly declared incapable of entering into it.
2. That it be not entered into by any person to whose interests it is to be presumed injurious:—fraud or undue coercion having been employed to engage him to enter into it.
3. That,—lest, to his disappointment, it should prove injurious to his interest,—before he enters into it, he should be sufficiently apprized, not only of the rights which he will acquire by it, but of the several obligations, certain or contingent, to which he will, or eventually may, be subjected by it.
4. That the contract be not of the number of those which are coutrary to law.—i. e. in the opinion of the legislator productive of preponderant mischief to third persons, and, in contemplation of such mischief, the fulfilment of, and consequently the entrance into, a contract to any such effect, prohibited.
Wheresoever the assistance of a notary is called in, it depends upon the legislator to render it subservient to all these desirable purposes.
The operations by which it may be rendered so, may be comprised under three heads, viz.—
1. Reception and attestation of declarations (uninterrogated declarations) made by the party or parties, according to preappointed forms prescribed and provided by the law,—viz. in such cases in which such spontaneous declarations are of themselves, and without the assistance of interrogation, regarded as sufficient.
2. Interrogation of the party or parties, when deemed necessary for the more correct and complete extraction of the facts marked out for the subjects of declaration.
3. Notification of the state and disposition of the law;—viz. of the law by which the several rights and obligations, resulting or liable to result from the contract in question, have been determined.
1. & 2. As between requisition and receipt of uninterrogated declarations on the one hand, and interrogation on the other,—which shall be the species of security employed, will depend upon the nature of the contract, and other circumstances in the case. Either, or both, may be prescribed absolutely; or, declaration, as to certain points being required of course, power, discretionary power, of interrogation, may be given to the notary, without imposing on him the obligation of exercising it.
Interrogation requiring on the part of the proposed interrogator (here, the notary) the union of intelligence and skill with probity, to render it productive of its intended effect, and being never wholly unattended with vexation,—whatsoever can be done without it (i. e. by means of declarations alone) ought therefore to be done: and accordingly, whatsoever security can be afforded by declarations alone, ought to be carried to the utmost length that can be given to it. But, as in all other cases, so in this,—wheresoever mala fides, self-conscious improbity, has place, the utmost security that can be afforded by naked declarations, exempt from the scrutiny of interrogation, will frequently prove insufficient.
Where, for instance, either fraud or undue coercion have been employed by any party, to engage any other to enter into the proposed contract;—so various are the facts which, for detection of the projected iniquity, will require to be brought to light—so incapable of being comprehended by any of those general expressions, to the use of which preappointed forms are necessarily confined, that the necessity of providing powers of interrogation for supplying the deficiency seems to be out of doubt.
But fraud and undue coercion are extraordinary incidents—not having place, perhaps in one out of many hundred instances. Here, then, we see an instance in which, for the prevention of the possible mischief, power for applying the remedy (viz. interrogation) is sufficient, without the obligation of applying it.*
3. For the notification of the state of the law, provision has already been proposed to be made by the proposed requisition of promulqation paper.
But it is one thing to possess a faculty or possible means of doing a thing, and another to have actually exercised it. The state of the law relative to the species of contract in question being (either at large, or in the way of abridgment and reference) presented by the promulgation paper,—i. e. by the species of contract paper applying to the species of contract in question,—there it is for each party to read, if he be at the same time able and willing to go through the task: but an illiterate man will not be able, and an idle or careless man may not be willing, so much as to engage in it.
Shall the notary himself be bound to read over to his client the contents of the margin of the contract paper? or shall it be sufficient for him to receive from the client, among the list of declarations (properly sanctioned declarations,) a declaration of having read it, or heard it read over by an individual (naming him,) as the case may be?
The option proper to be made between the two courses will depend partly upon the importance of the contract, partly upon the quantity of matter to be read. The time of the notary must not be occupied in reading that, or anything else, without his receiving, at the expense of the client, an adequate remuneration for it.
In English practice, it is pretty much in course for the client, in the presence of the notary, to read over, or bear read over, the instrument of contract, before he signs it. To what end receive this information of the contents of it? That he may be assured that no other obligation will on the occasion in question be imposed upon him, than what he is willing to take upon himself.
But, under English jurisprudence, as instruments of contract are penned on the one hand, and as the rule of action in relation to them stands, or rather wavers, on the other,—the obligations which, by reading the instrument of contract, the party is apprized of, are never any more than a part (it is impossible to say what part, frequently the least considerable part) of the obligations which, on his joining in the contract, are imposed upon him.
The proposed contents of the proposed printed margin of the proposed promulgation contract paper, will therefore consist of that sort of matter which there will be no less reason for the party’s reading or having read, than for the reading or hearing the contents of the manuscript in the body of it.
Of the contents of an instrument of contract, as prepared by an English lawyer, by far the greater part is regularly composed of a quantity of excrementitious matter, having for its object and effect, partly the exaction of a correspondently superfluous quantity of the matter of remuneration in the shape of fees—partly the production of uncertainty, with the litigation which is the expected fruit of it—partly the impressing the non-lawyer with the persuasion of his inability to give expression, in a case of this sort, to his own will, without calling in the assistance and submitting himself to the guidance of an adviser, whose interest is thus opposite to his own. If this surplusage—this noxious matter—were left out, a vacancy would be left, such as might in general fall little, if at all, short of being sufficient to contain as large a portion of the text of the law (supposing the law to have a text) as would be sufficient to furnish the parties with the information requisite for their guidance.
Not unfrequently, among the rights and obligations which the parties suppose themselves to have established by their contract, are many, and those to any amount in respect of importance, which, by the disposition of the law in that behalf (law distilled by writers from decisions pronounced by judges,) have been changed or omitted. So far as this plan of treachery has been carried into effect, the text of the contract, instead of affording the information, the true information, which it pretends to afford, produces the deception which is intended.
If the reading or hearing the proposed instrument of contract be deferred till the time appointed for authentication, time sufficient for reflection will, in many instances, not have been allowed: and, in case of any change of intention produced by the information thus conveyed, time, which must be paid for, will have been unnecessarily consumed.
An operation which ought therefore to be considered as part of the duty of the notary, is, the putting into the hands of the client a blank instrument of promulgation paper, according to the nature of the proposed contract: and the acceptance of such blank instrument will serve as a proof of the act of engaging the assistance of the notary, and will fix the point of time from which the service is to be computed.
Then will be the time and the occasion for the notary to point out to his client the declarations which it is incumbent on him to make, and the interrogations, if any, to which it is, or may be, incumbent on him to make answer.
Here, then, will be no surprise, no hurry, no dearly-paid time unnecessarily consumed.
For illustration, the following may be mentioned as so many instances of contracts which, while by their importance they will compensate for the time and labour necessary to produce the most effectual notification, so by the nature of them they will, previously to final agreement, admit, without inconvenience, of an interval of reflection sufficient to the purpose:—
1. Instruments expressive of the rights and obligations established by the marriage-contract.
2. Instruments expressive of the contract constitutive of the correspondent relations of master and apprentice.
3. Instruments serving for the appointment of an individual to act as guardian to a given minor, who is thereby constituted his or her ward.
4. Instruments expressive of the contract constitutive of the relation of master and servant—hired servant.
N.B. Instruments with marginal laws of different tenor will here be requisite, according to the different lines of service: domestic service, under its various modifications; service in husbandry, in navigation, mining, &c. &c.
5. Instruments expressive of the contract constitutive of the relation between landlord and tenant.
Here also instruments with marginal laws of different tenor will be required, corresponding to the different modifications of which the subject-matter and the quantity of interest in it are susceptible; according as it consists of land without buildings, buildings without land, buildings used for habitation, buildings used not for habitation, but for other purposes; the whole of a dwelling-house, or only an apartment in the house, and so forth.
The object to be aimed at in the distribution is this,—viz. that no person shall, either in the shape of expense or in the shape of labour of mind, be charged with any portion of the matter of law, other than what, for the guidance either of his conduct or his expectations, he is concerned in point of interest to be acquainted with: for example, that, though both come under the general denomination of tenants, the occupiers of a weekly lodging in a house situated in a town, shall not be obliged either to buy, read, or hear read, a string of regulations which apply to the occupier of an agricultural establishment.
The cases themselves are not to such a degree distinct as to render it possible in every case to exonerate each individual from every particle of legislative matter that does not apply to his case. The only use of the principle, nor is it an inconsiderable one, is, that the separation, so far as the nature of the law and the circumstances of the individual case admit of it, shall be made.*
Honorary notaries proposed.
Some persons there will always be, who, to purposes such as the above, having occasion for the assistance of a notary, will be unable to pay the price for it. Some persons:—and, in England for example, in this predicament stand the labouring classes in general; in a word, the great majority of the people.
To almost any person in such parts of the country as have no considerable town in their near vicinity, it may on various occasions happen to have need to enter into a contract, especially to make a disposition of his property by his last will, and for this purpose to have recourse to the assistance of a notary, at a time when no such assistance is within reach.
But a neighbourhood, many a neighbourhood, which does not afford a professional notary (i. e. in England, an attorney,) or does not afford a notary who at the moment of exigence is within reach, may afford a person or persons whose education and habits of life would enable him (at least in respect of such contracts as are not embarrassed with any considerable degree of complication) to discharge the functions of a notary, if furnished with proper instructions by the legislator, in a manner no less effectual than if engaged by profession in that line of service.
Britain is fortunate enough to possess more descriptions of men than one, of whom, on an occasion of either of the above descriptions, service of this nature, if placed on a suitable footing, might, on the ground of experience, be expected: justices of the peace, for example, and ministers of religion;* to whom to some purpose might perhaps be added schoolmasters.
To accept of a pecuniary recompense would in the two first instances be to enter upon a profession which would not be generally regarded as being with propriety capable of being added to their own: and, where it is by the indigence of the client that the need of recourse to the assistance of the patron is produced, the acceptance of such recompense would be repugnant to the end in view. In the adjunct honorary, the exclusion of such recompense would be implied.
In the case of the indigent client, the fee, whatsoever it might be, that might be deemed suitable to the service, if rendered by the professional notary, would, by the honorary notary, not be received.
In the case of the client driven to request the assistance of the honorary notary, by the inability of obtaining within the necessary time the assistance of the professional notary,—the considerations of delicacy which would prevent the honorary notary from receiving the fee to his own use, would not prevent him from receiving it to the use of some charity, such as the poor of the parish, or to the use of some professional notary of his own choice.
Of a general and habitual readiness to render such service upon such terms, there seems not in either instance any room for doubt.
In the case of judicature, by far the greatest part of the business of this nature that the country affords is done by unfee’d judges. Applied to this branch of legal service, there seems no reason to apprehend that the same principle should be less efficacious than it is seen to be in its application to the other.
The abode of the patron will of course be the spot to which, as in the case of the judicial business above alluded to, whoever has need of the service will repair for the purpose of requesting it. Under these circumstances, the service rendered, the obligation conferred, will be considerable; the labour of rendering it will not be great.
As to the readiness and frequency with which service of this nature will be rendered, several circumstances may be mentioned, on the joint influence of which it will depend.
1. Upon the simplicity and clearness of the instructions given by the legislator, as proposed, on the margin of the proposed authoritative contract paper.
2. Upon the comparative lightness of the burthen attached in the shape of responsibility to assistance thus bestowed. In the case of the man of charity, whose service is bestowed without anything that is generally understood under the name of recompense, the responsibility cannot be in every point as strict as in the case of him who serves for recompense. The principle, alike recommended by justice and policy, has nothing new in it. It has received its application in the instance of the office of justice of the peace. As to schoolmasters, those of the lower order have every now and then been known to be employed, among the lower classes of clients, in the character of notaries, principally for the purpose of making wills.
With sarcastic exultation, professional lawyers have been heard to speak of men of this description as belonging to the number of their friends—more useful to them by the lawsuits thrown by these usurpers into the hands of the regular practitioners, than hurtful by the notarial business taken out of the same learned hands.
The exultation may perhaps have not been ill-grounded: but it may be accused as carrying ingratitude in its company, if due remembrance be not had of the governing members of the partnership, from whose providence the rule of action has received that well elaborated form by which it has been rendered incapable of being learnt by those whose province it is to teach others.
OF WILLS, AS DISTINGUISHED FROM OTHER CONTRACTS.
Utility of wills, deathbed wills included.
The demand, in point of use and reason, for the power of giving validity to a last will, differs in several points from the power of giving validity to a contract of any other description, whether obligatory promise or conveyance: and, from the difference as to these points, follows a corresponding difference in respect of the formalities proper to be required, and the means proper to be employed in the view of enforcing observance.
1. A disposition of a man’s property, destined to take effect not till after death, and in the meantime, as it ought in general to be, revocable, and subject to indefinite alteration, is a species of conveyance, which, to answer its purpose, must be susceptible of, and, if there be power, will frequently in fact be subjected to, indefinitely frequent changes.
It is liable to change, as it were, at both ends. On the one hand, by death, by increase or decrease of need, by increase of age, by change in condition of life, the claims of those whom a testator would naturally choose for the objects of his bounty, are liable to continual change. On the other hand, the subject-matter, the property to be disposed of, is, in shape or quality as well as quantity, alike exposed to change.
2. A last will requires to be made, in circumstances in which neither the necessity nor the expediency of entering into a contract of any other kind, to any considerable amount in point of pecuniary importance, will in general be apt to have place: viz. on a deathbed, at a time when professional assistance may not be within reach; or in some place in which, or on some occasion on which, neither professional assistance nor promulgation paper (supposing any such implement to be required to be employed) would be obtainable.
By the laws of some countries,* a will made on a deathbed is disallowed.
By such a disallowance, spurious and unfair wills may perhaps be in a degree more or less prevented; but the value of the power in question is to every purpose in a very considerable degree diminished.
Without the power of making dispositions of property to take effect after death, the provision made by the legislator for the comfort of the heads of families, and for the welfare of the members, would be in an eminent degree deficient.
1. This power is of use to a man in the character of an article of property. In this way, value is created, as it were, out of nothing; the value of the property of the country increased in a vast proportion, not to say doubled.
2. In the hands of the aged, it serves as a compensation for the various disgusts which that time of life is so liable to inspire; and as a security against that neglect and contempt to which, on that account, as well as on account of the weaknesses incident to it, they would otherwise stand exposed.
3. In the hands of a person rendered helpless by disease, and dependent for his life on the services of others, this power is a security for life—an instrument of self-preservation.
4. It is useful in the character of an instrument of government, having for its object the welfare of individuals other than the proprietor himself. At an early age, it is necessary to the very being of man that he should be subject to the government—and for a long while after, conducive to his well-being that he be subject to the influence of his superiors in age. If the power of bequest were withholden, the force of this instrument would be in a great degree weakened.
5. As between equals in age, without need of government or docility on either side, the prospect of posthumous bounty forms a bond of reciprocal attachment, and a security for reciprocal good behaviour, kindness, and self-denial, in the minor but continually-repeated concerns of life. It enables one man to obtain the convenient or necessary services of another, for whom, out of his income, and in his life-time, he could not spare a sufficient reward.
6. In the case of those who have no near relations, endeared to them by the ties of nature or long habit,—and in the case of those whose natural relations have, in their eyes, rendered themselves unworthy of their favour,—it contributes to substitute frugality to that dissipation, which would be the natural course of him who should behold whatever were left unexpended by himself entailed on a successor or set of successors who were either odious or at best indifferent in his eyes; and thus (in so far as it checks dissipation from that source) it promotes that slow but constant and general accumulation of the matter of wealth, in the shape of capital, upon which the welfare and comfort of the individual, and the increase of the general mass of comfort by the multiplication of the species, depends.
If a deathbed will—a will made during a last illness—be utterly disallowed, a man is divested of the power of rewarding services on which his life depends, or of punishing neglects (whether wilful or for want of attention) by which death, preceded by suffering to an indefinite amount, may be produced. On a person rendered helpless, and perhaps speechless, by a dangerous disease—in a case in which an apparently trivial service, neglected or even ill performed, may be fatal,—homicide, murder (viz. so committed,) is scarcely an object of legal punishment. If, therefore, there be a single moment of sanity during which this power is withheld, and known to be so, a man’s life will he altogether at the mercy of the attendants of a sick-bed,—that is, of dispositions of all shades, from the best to the worst, too many of whom may not be proof against the temptation thus thrown into their hands. Exposed to injury from enemies, a man would feel himself divested of the power of purchasing assistance from neutrals, or animating in the same way the exertions of the well-disposed. In conversation with the devoted victim, so long as no third persons capable of serving as witnesses were at hand, the fatal purpose might even be avowed: and the cup of inhumanity might thus have insult to embitter it.
These things being considered, the propriety of allowing or disallowing deathbed wills, will, in each country, depend in no inconsiderable degree on the state of morality among the people. But, even in the most virtuous state of society, the legislator should never repose on popular virtue any confidence which can be withholden without preponderant inconvenience; he should never hold out, to all, a temptation, under the force of which it may happen to the virtue of any one to sink. Be the quantity of virtue among the people ever so great, necessity alone should engage him to do anything that can tend to lessen it.
By requisition of formalities, if peremptory, more mischief is produced than prevented.
In speaking of contracts in general; formalities, calculated to throw difficulty in the way of spurious and unfair ones, being proposed to be by authority instituted, and the observance of them recommended,—pointed suspicion, not nullification, was spoken of as being in general the proper and sufficient instrument for securing observance: nullification, disallowance, not being reconcilable to general utility on the part of the legislator, nor to good faith on that of the judge, on any other condition than that of a full assurance of its being in a man’s power to comply with the formalities, as well as of his being actually apprized of the existence of the obligation by which he is called upon for compliance.
Of contracts of all sorts, taken in the aggregate, so vast and diversified is the field, that, without some determinate species brought forward for illustration, and as an example by means of which a determinate shape might be given to the ideas belonging to such general propositions as should be advanced concerning it, and the truth of those the more readily brought to the test, our conceptions on the subject might be apt to be bewildered. On this consideration it was, that the species of contract called a last will was fixed upon, to officiate, as it were, on this occasion, in the character of a representative of the rest.
On the occasion of this, as of other contracts, the legislator, if he be at once honest and enlightened, neither corrupted nor misled, will naturally direct his endeavours to two main objects: to facilitate the formation, and secure the effect, of genuine and fair ones; to prevent the formation, and at any rate the success, of such as are unfair or spurious.
If pain of nullity be imposed, and that arbitrarily and inexorably, without regard to the necessary conditions, viz. power of observance, and knowledge of the necessity for observance, as above specified,—the first of the above objects, viz. the giving existence and effect to fair ones, is, so far as the application of the proposed remedy extends, sacrificed, certainly as well as completely. But, by the certain sacrifice thus made of the one object, no more than a chance of compassing the other is purchased; for, where the formalities, whatever they may be, are to all appearance, or even in reality, observed, still it may and does happen to the pretended instrument exhibited in the character of a last will, to be discovered to be either unfair or spurious.
Force and fraud, the causes of unfair wills (viz. of such as are so to the prejudice of the testator and his natural successors)—force and fraud are no less capable of being employed in the prevention of fair wills.
A set of persons—engaged in a mal-practice of this sort by sinister interest, whether as standing next in succession, or as being or supposing themselves to be favoured by a will already made—beset a man’s deathbed, refuse their assistance, to the making of a will, shutting the door at the same time against assistance from every other quarter. Here we see a fair and genuine will (i. e. one which, had it been suffered to have been made, would have been so) prevented by force.
Suppose three attesting witnesses necessary: two on the spot, ready and willing to officiate in that character, but all others kept off, as above, avowedly, and even by force. Under the inexorable system of nullity, the wickedness would be triumphant: no relief could be obtainable.
In league with the persons interested (as above) against the allowance of a fresh will, a notary falsely declares to the testator that such and such formalities are not necessary, or that, being necessary, they have been observed, when in fact his care has been that they shall not have been observed. Wickedness again triumphant: no relief.
Of the two objects,—the one pursued at the expense of the other—the one openly sacrificed to the other,—suppose the importance equal: how would the profit or loss resulting from the expedient be to be taken account of? It is only upon one supposition that there would be a net profit,—viz. if the number of unfair or spurious wills thus prevented from taking effect or coming into existence, was greater than the number of fair and genuine wills prevented from taking effect or coming into existence. Not (be it observed) the total number of unfair or spurious ones prevented from taking effect or coming into existence by any means, but only the number prevented from taking effect or coming into existence by this means.
Suppose, then, a country, in which two species of property are to this purpose distinguished: one, to the disposal of which by last will, certain formalities have been made necessary; the other, to the disposal of which in that same way, no such formalities are made necessary.
To any person unapprized of the state of the English law in this respect, the supposition will be apt to appear an extravagant one. A little further on, it will be seen to be realized.*
If, in this state of things, an account were taken of the wills of both sorts, call them formal and informal, contested within a given period, say ten years—distinguishing, in each case, such as were allowed from such as were disallowed,—by such an account, conclusions in no small degree instructive might be afforded.†
Suppose that the number of formal wills, to which spuriousness or unfairness is in this authentic and deliberate way imputed, and which, on one or other ground, are accordingly contested, is found to be just as great as the number of informal wills contested on the same grounds: this will surely amount to a satisfactory proof, that, by the formalities, no effect at all, in respect of the prevention of spurious and unfair wills, has been produced; and that, consequently, the sacrifice made of so many fair and genuine wills as, having been made, have been prevented from making their appearance, has been a sacrifice purely gratuitous: none of that good which the requisition of the formalities had for its object or professed object,—nothing, in a word, but so much pure evil (as above)—having been produced.‡
Whatever be the number of spurious or unfair wills defeated,—prevented, either from taking effect, or from coming into existence—in the case of the species of property subject to formalities,—the mass of good thus produced under the system of formalities sanctioned by nullification, is not all of it to be placed to the account of that system; since a part of that same good, if not the whole, might equally have been produced by the same formalities, if barely recommended: suspicion of unfairness or spuriousness, not nullification, being indicated as the consequence of non-observance.
Under English law, an account of the sort hereinabove indicated, might, without difficulty, if the force of authority were applied to the subject, be obtained—if not for a past period, at any rate for a period to come. But even for a past period, say ten or twenty years, there need be little doubt. The official books, notwithstanding the defectiveness and inappositeness of the plan on which official books are kept, would afford considerable information; inquiry among individual practisers would complete it: work for a committee of either house of parliament.
In a cause of great celebrity, the number of formal wills contested, and even disallowed, was, by one of the most enlightened of English judges, asserted to be greater than the number of informal ones in the same case. “The legislature,” says Lord Mansfield (speaking of the clauses relative to wills, in the statute called the Statute of Frauds and Perjuries,) “the legislature meant only to guard against fraud by a solemn attestation: which they thought would soon be universally known, and might very easily be complied with. In theory, this attestation might seem a strong guard: it may be some guard in practice; but I am persuaded many more fair wills have been overturned for want of the form, than fraudulent have been prevented by introducing it. I have had a good deal of experience at the Court of Delegates, and hardly recollect a case of a forged or fraudulent will, where it has not been solemnly attested. I have heard eminent civilians who are dead, and some now living, make the same observation.”*
Hitherto we have supposed that the two evils—frustration of a genuine will, and successful imposition of a spurious one—are of equal magnitude: and even upon this supposition it has appeared, that to incur the first of the two evils for a chance of preventing the second (by peremptory requisition of formalities,) is a bad calculation; the number of fair wills disallowed in consequence, having, in the opinion of a competent judge, practically exceeded the number of spurious or unfair ones prevented. But, even in this way of stating the case, we have not availed ourselves of all the arguments within our reach.
Might it not with considerable show of reason be contended, that (value at stake, and all other circumstances, as nearly as possible the same) securing of fair wills from frustration is a more important object than preventing unfair or spurious ones from taking effect?—that, of two mischievous results, frustration of an intended fair will is more mischievous than effectuation of an unfair or spurious one?
1. Take first the case of a father of a family.
The legislator being unacquainted with the exigencies of individual families, the disposition he makes of the property after death is but a random guess, a makeshift: against its being the best adapted that can be made, there are many chances to one. Unreasonable wills may, it is true, be made, and every now and then are made. But the case of an unreasonable will is an extraordinary case, similar to that of prodigality: and, as it supposes reflection, the absence of which rather than the presence is indicated by prodigality, probably still more rare.
On the part of parent, as well as child, inofficiosity, as the Romanists call it, is indeed always liable to have place. But on the part of the parent it seems least so. In descent, love has been observed to be stronger than in ascent. In the superior, sympathy has the pleasure of power to strengthen it: in the inferior, it has the painful sense of restraint to weaken it.
Prodigality is more naturally the weakness of youth than of mature age. Against prodigality on the part of a child, the disposition made of the property of the parent, after his death, by the law, provides no remedy: by the forecast and sympathy of the parent, a remedy will naturally be provided.
When a fair will is prevented, the worst that happens (it may be said) is that the estate falls into the natural course of succession, viz. that which in the eye of the law is the best: whereas, by an unfair will, it may be made to take a course as foreign to the natural course as it would by theft. But, under different systems of established law, courses of succession differing widely from each other are to be found: and among them all it would not be easy to find one to which the epithet of a natural one could with propriety be applied: and even the best natural one, supposing it adopted, would, as already observed, frequently be but ill adapted to the exigencies of the individual case.
A will, leaving everything away from children to strangers, or more distant relatives, is always possible. But, even taking fair and unfair, genuine and spurious, together, such a case is very rare: much more so it fair and genuine ones are left out of the account.
What applies, as above, to the cases of parent and child, applies, though of course with less and less force, to their respective more remote representatives—grand-parent and grand-child, uncle or aunt and nephew or niece, and so forth.
In every case of a first will, the operation, if it has any, is to the disadvantage, if not of all natural relatives taken in the aggregate, at any rate of some, as compared with others. But when once a will has been made, the operation of any subsequent will may as naturally be to the advantage of natural relatives, as to their disadvantage.
2. Take next the case of a man without a family—a man who has no blood relations near enough to produce from that source the sentiment of sympathy. Wills (whether fair or unfair, genuine or spurious) made to the prejudice of blood relations, are supposed to belong mostly to this class.
To this case applies the distinction between the mischief of the first order, and the mischief of the second order:* in comparison with which last, where it has place, the mischief of the first order is generally very inconsiderable.
As often as an intended fair will is, by non-observance of formalities, prevented from taking effect, the existence of the mischief is almost always known—the knowledge of it spread over a circle more or less extensive. The more extensive the circle, the wider the alarm, the apprehension, produced of similar mischances in the breasts of other persons, in the character of intended testators.
On the other hand, when an unfair or spurious will takes effect, the instances are rare indeed, in which, the existence of the mischief being known, or at least suspected, any alarm can have been spread by it. If suspected, contestation is the natural consequence. And if wills of this description—wills, the object of suspicion and contestation, are rare,—wills which, being so suspected and contested, have been confirmed by the judge, and, notwithstanding such confirmation, are generally believed to be either unfair or spurious, cannot but be much more rare.
The conclusion is, that, of the two mischiefs—effectuation of unfair or spurious wills on the one hand, and frustration of fair ones (which being fair cannot but be genuine) on the other—magnitude and certainty both taken into the account, the latter is considerably the greatest. But it is this latter, which, under the system of nullification, the legislator produces to a certainty, and as it were without a thought about the consequences, for the purpose (real or pretended) of promoting, not the certainty, but a chance only of the other. For, without evidence of some sort or other, an unfair or spurious one will no more obtain credence than a fair one; and, on the supposition that the evidence is false, there is surely some probability, if not a preponderant one, that it will not be believed.
Use of autography in wills. Recommendations in relation to it.
So efficient, in the case of last wills, is the security afforded by autography, against fraud in almost every shape—against spuriousness pro parte, as well as spuriousness in toto—against unfairness as well as spuriousness—that, in point of trustworthiness, even without any attestation, a will thus authenticated seems to stand at least upon a par with a supposed last will, written in a hand other than that of the testator, although authenticated by his onomastic signature.
1. The more words a mass of writing contains, the more precarious will be the success, and thence the greater the labour, of an attempt to fabricate it. Where the only mode employed for authentication ab intrà is that which consists of onomastic signature, the quantity of writing to be fabricated is confined to the two or three words (in England most commonly no more than two) of which a man’s name is composed: in the case of autography, the number has no limits.
2. An autograph instrument is less exposed to the danger and suspicion of having been the result of undue coercion, whether by physical force or fear, than a will, in the instance of which the operation of authentication has consisted of nothing more than the writing of two or three words. Signature, though it be of the onomastic kind, is the work of a minute: the terror or uneasiness of the minute suffices for the accomplishment of it. The greater the number of the words, the greater the difficulty of keeping the mind of the patient in the state of coercion requisite to the production of the effect.
3. It is even in some degree less exposed to the danger and suspicion of having been the result of fraud in either of its shapes, viz. positive falsehood, and undue reticence; or even erroneous supposition of inducement, unaccompanied by fraud. Why? Because, the greater the number of words written, the longer the operation lasts, and thence the longer the mind of the writer is necessarily applied to the subject.
4. So likewise to the danger and suspicion of unsoundness of mind. If the testator calls in the assistance of a scribe, more especially if of a professional scribe, whatever words he employs in conveying the expression of his meaning to the scribe, the words written will be those of the scribe: expressions which, in case of want of sanity, might have betrayed the defect, will of course be rejected. For the scribe to reject them, it is not necessary that any persuasion, or so much as a suspicion, of the insanity, should have entered into his mind: they will be rejected as being, in comparison with those which to his mind present themselves in the same view, inapposite. The inappositeness—the effect—will present itself much more promptly than the insanity, the cause: and the effect will have been perceived in many a case, where the cause has never presented itself at all.
5. When the requisite soundness of mind is wanting,—the longer the instrument, the longer the course during every part of which the mind will be exposed to the danger of taking its flight into the regions of absurdity or nonsense.
6. When the test and proof of genuineness and fairness is thus afforded, amendment in every shape may be allowed to take a freer course than without this security can with equal safety be permitted.
7. Of this contract it has already been mentioned as an effectual and peculiar feature, the being susceptible of requiring frequent and indefinitely numerous changes; and these, in point of importance, to any amount considerable or inconsiderable.
In this way, many a change will present itself, which a man will readily and gladly make, when he can do it by a few lines or a few strokes of his own hand, and without witnesses, but which he would not make, if upon each occasion it were necessary to have to perform the ceremony of calling in witnesses. To employ always the same witnesses, he would excite speculation, and expose himself to the imputation of fickleness or capriciousness: different sets of witnesses, to whom it would be agreeable thus to open himself, it might not always be easy for him to find; and the more there were of them, the greater the danger of their comparing notes, and thence of the imputation of fickleness or capriciousness, as before.
On an occasion of this sort, it is not enough that the testator and the intended objects of his bounty be guarded against receiving injustice: another object to be attended to, is the guarding the circle of which he is the centre from being exposed to suspicion of having been guilty of injustice.
For both these purposes taken together, the following present themselves as being of the number of the recommendations which it might be of use for the legislator to address to testators in general; and in particular to such as, for the expression of such their wills, make use of none but their own hands:—
Let numbers he written in words, rather than figures: or (to unite distinctness with security against falsification and misconception) in both ways; as is the practice in draughts made on bankers. To forge an entire name with any prospect of success, requires a degree of skill much beyond what is common: but there is scarce any tolerably good writer by whom one figure could not be converted into another, without leaving a possibility of guessing by what hand the alteration was made. In some instances (such as the conversion of an 0 into a 9) the alteration may even be made without inducing a suspicion that any alteration has been made by the original writer (the testator,) or any one else.
The following recommendations relate exclusively to amendments, considered as incident to last wills: viz. in the case of autography, as above:—
Amendments may be made either in the informal or in the formal mode: viz. on the face of that part of the paper on which the will was written in its original state (as in the writing of an ordinary letter or memorandum;) or on a separate part of the paper, or on a separate sheet: in either of which last two cases, it is said to be made by codicil.
Recommendations concerning the informal mode:—
1. Of amendment or alteration there are three modes: subtraction, addition, and substitution. Substitution is subtraction and addition both in one.
2. Whatever amendment you make in any line, write in continuation of that line (in a margin left for that purpose) your name,—viz. either at length, or by the initial letters of the several words of which your name is composed: if the alteration be an important one, better your name at length. For, supposing any other person disposed to falsify your will,—so far as subtraction is sufficient, it is what may be performed by any person (viz. by cancelling or obliteration, by drawing lines across, or scratching the word out,) without its being possible for any one to perceive that it was not by yourself that the alteration was made.
3. For subtraction (unless it be an object with you that the prior disposition should not appear,)—cancelling in such manner as to leave the original word still visible, seems preferable to obliteration: for obliteration will be apt to excite doubts and suspicions, which the leaving of the original word still visible will obviate.
4. So, for substitution,—cancelling (as above) the original word, and then, with a mark to indicate the proper place for insertion, writing the added word above, is preferable to alteration of this or that letter in the original word: because, if done by another hand than your own, the difference between one hand and another is more perceptible in an unaltered than in an altered word.
5. If (whether by cancelling, or obliteration, or interlineation) you subtract, or substitute, or add, one more word than in the same line, especially if it be in distinct parts of the same line,—it may be of use to insert the initials of your name, not only in the margin of that line, but over every word so cancelled or obliterated: otherwise, under favour of the acknowledgment which you have given that one such alteration has been made by you, another person may, without possibility of discovery, make more alterations, at least in the way of cancelling or obliteration.
6. It will be an additional security, if, at the end of your altered will, after any alterations which it has undergone, you were (after writing the day of the month and year of the date) to sum up the number of the alterations made up to that date: for which purpose, the lines of which your will is composed would require to be numbered,—for example, by a numerical figure subjoined to every fifth line in the margin: as thus,—
7. If the alterations be to a certain degree numerous, you will find it advisable, for avoidance of perplexity or uncertainty, to write your will afresh. But, in many instances, as where a sum or a person is concerned, an alteration of any the greatest degree of importance may be effected, by subtraction, addition, or substitution of a single word.
Unless where the alteration consists of new matter, intelligible without reference to the old, the informal mode will frequently be clearer than the formal; i. e. the change in disposition will be more clearly made by alteration of a few words in the original text, than by an additional paragraph or number of paragraphs forming a codicil: for in this case, the effect of the codicil at length will only be to give directions for the doing that which, by alterations made in the informal way, is done at once.*
On the attestation of wills.
The advantages attached to autography have just been brought to view. But in some cases autography is not practicable; in others, a man will naturally be disinclined to practise it.
1. The cases in which it is not practicable, are those in which either the necessary skill or strength are wanting.
2. Where professional assistance is called in, autography will not in general be in use. The words employed by the man of science will naturally be his own. It is by his hand that they will be committed to writing. To the testator, the labour of writing being thus performed by another hand, labour of copying employed by his own hand will be apt to appear superfluous. If a transcript is wished for, the labour of making it will naturally devolve upon the professional man’s clerk; the profit constituting a natural perquisite to the master.
If, among the dispositions to be made, there be any of a complicated nature, as is apt to be the case where landed property is among the subjects to be disposed of,—then, especially if the scene lies in England, comes in a mass of technical jargon, to the non-lawyer an object of terror and disgust or both, from which his pen will be repelled by a sort of instinctive repugnance.
When thus the assistance of a foreign hand is called in, that of the testator himself not being applied to any purpose other than that of authentication, onomastic, or, according to the state of his powers, only symbolic,—then comes naturally the demand for authentication ab extrà: and, along with it, the questions, by what and how many hands shall it be performed.
One will naturally be that of the assistant, professional or non-professional, who has officiated in the character of scribe: and then comes in the other question,—Shall any, and, if any, how many, other persons, be called in to officiate as attesting witnesses?
1. In contradistinction to a single witness, the chief use of two attesting witnesses is constituted by the increased security it affords against spuriousness; viz. spuriousness in toto, the result of forgery in the way of fabrication.*
Whatsoever may be the obstacles to success in the case of a single attesting witness,—add another attesting witness (i. e. a requisition recommending the calling in of another attesting witness,) these obstacles will be not merely doubled, but more than doubled.
To form the more distinct conception of the use of two attesting witnesses, in the character of a security against forgery in the way of fabrication,—let it be considered what the expedients are, which under different circumstances would be apt to present themselves to the consideration of a man who had it in contemplation to commit a fraud of this nature.
For the reason already mentioned, a will purporting to be an autograph will scarcely be chosen by the fabricator for the subject of the fabrication: it will be the less likely, the greater the number of the words that appear necessary to answer the fraudulent purpose.
But, if a supposed autograph be rejected as impracticable, then comes the necessity of an apparent authentication ab extrà, to be performed by one or more attesting witnesses.
The author of the fraud must either write the supposed spurious will himself, or procure some other person to write it. Of another person the assistance could scarcely be made effectual to this purpose, without his being let into the secret; i. e. engaged to become an accomplice in the fraud. Such accomplice the author will not naturally engage, nor attempt to engage, if he can help it: the accomplice must have his reward, which carries off more or less of the profit: paid in presenti, it requires confidence on one side; made payable in futuro, eventually (for example) in case of success, it requires confidence on the other side: putting himself in the power of another, who by the supposition cannot but be dishonest, he thus incurs an additional risk of failure, besides exposing himself to the risk of punishment and infamy: and to the danger of infamy he cannot but expose himself by the very proposal, and before he is sure of consent.
The accomplice, unless his timely death be assured, must moreover be such a person, as, upon receipt of such instructions as the author of the fraud has it in his power to give, must be able to stand the scrutiny of counter-interrogation.
In this state of things, suppose the law to have rendered the attestation of one attesting witness necessary, but at the same time sufficient.
First, then, let the supposed testator be a person of whom it is known that he is unable to write his name. Here the task of the forgerer is comparatively an easy one. With his own hand he writes the spurious will—with his own hand he subjoins his own name in the character of that of an attesting witness; then adding, in the character of a symbolic signature performed by the testator, a mark; for which (a cross, the usual mark, having nothing in it that is characteristic of the hand) the forgerer’s hand may serve as well as any other.
Next, let the supposed testator be a person whose capacity of writing is out of doubt. Here, then, the signature must be of the onomastic kind. Accordingly, upon a paper on which he has previously succeeded in writing what to him appears a sufficiently good imitation, the author writes in his own hand the spurious will, together with a declaration of attestation signed by his own name in his own natural hand.
How much more difficult the task of the forgerer would be rendered, by requiring two witnesses instead of one, has been seen.
Even if the difficulty of finding persons at the same time able and willing to engage in a scheme of iniquity of this description were the only difficulty,—by doubling the number of the persons whose engaging in it were necessary to success, the difficulty would be increased cent. per cent.*
But to this difficulty, with its attendant dangers, are added the several other dangers that have just above been brought to view. By calling for two attesting witnesses in contradistinction to one, the difficulty, the improbability of success, is therefore much more than doubled. How much more, depends, in each individual instance, upon the individual circumstances of the case; and cannot, in any one individual case, be brought within the reach of calculation.
More than two attesting witnesses, it appears unnecessary either to require or to recommend; since it does not seem that the absence of a greater number of attestations constitutes in itself a valid ground for suspicion either of spuriousness or unfairness. There is no need, however, to limit the number of attesting witnesses: every additional attestation adds an additional security. Still less should attestation, as in English law, exclude recourse to non-attesting witnesses.
The exclusion put upon non-attesting witnesses on no better nor other ground than that of the existence of attesting ones, claims, by the word exclusion, to be posted off to that title. But, as the case in which the door of the judgment-seat is thus shut against the light of evidence bears no reference to anything in the character or situation of the witness, or to any peculiar effect resulting from the evidence, it seems difficult, under the general head of exclusion, to find any particular head under which to place it.
Never surely was iniquity more completely destitute of all support on the ground of reason. What passed, or is said to have passed, was seen by the two or the three persons whose names stand upon the face of the instrument in the character of attesting witnesses; therefore it was not seen by anybody else: such is the least absurd plea that could be urged in favour of the exclusion; supposing any man to have courage to hazard anything in that view. But what does it amount to?
To a last will, being a will disposing of an estate called real, three witness at the least being required,—three witnesses at the least, but three witnesses also at the most, are in common usage called in and made to sign their names. Besides these three, were thirty more present, no lawyer would (without some very particular reason, produced by some very particular state of things) think of desiring any more of the persons present to add their superfluous names to the three necessary ones.†
But, supposing it really to happen, that, in the number of persons present, in addition to these three attestors, thirty non-attesting but equally percipient witnesses were included; neither any one of the thirty, nor all of them put together, could, under the rule, be able to obtain credence for what they saw.
Of good, not a particle can on any supposition be the result of this lawyer-made rule. Of the mischievousness of its tendency, the enormity is such as to baffle calculation.
1. The attesting witnesses being all gained by corruption, and disappearing,—the thirty, if admitted, might, any one of them, defeat the wicked purpose. No: they shall not; nor all of them put together. Why not? Lest the wicked purpose should be defeated, and iniquity, the offspring of lawyer-craft, lose its triumph.
2. The attesting witnesses being all of them dead, remains as the sole obtainable proof (unless the other direct testimony which the case happens to have afforded be called in) the circumstantial evidence composed of the similitude of hands. The hand suggests doubt: shall the doubt be cleared up? Oh no: for to involve everything in doubt, is among the objects of the men of law.
3. Of the three attesting witnesses, one or more exist; and, at one time or other, their testimony may perhaps be obtained; but at any rate not without ruinous delay, as well as a most oppressive load of vexation and expense. Shall mischief in this shape be avoided? Oh no: to accumulate it in this shape, is another of the objects to which the desires and exertions of the law are invariably directed.
Whatever be the number of attesting witnesses required or recommended for a contract in general, for which authentication by witnesses is recommended,—the number of such witnesses required or recommended for last wills in particular should be the same. Why? For this reason: that it may be in a man’s power to make a will, without its being known to the attesting witnesses that he has done so.
The persecution and coercion to which, at the approach of death, a man is apt to be exposed at the hands of those in whose power accident or sinister design has placed him in so critical a conjuncture, has been already brought to view. In some instances, their interest will prompt them to engage him to make a will; in other cases, to prevent his making one. If the number of witnesses required in the case of a will were different from the number required in the case of every other sort of contract; and if, by simultaneous presence, or view of the attesting signature, it were manifest to each or to any one of the witnesses that the instrument he was executing was a will; the choice of the persons permitted to approach him for that or any other purpose, being in the power of those in whose power, in these moments of absolute subjection, his person happened to be; in such case, his purpose being thus rendered incapable of being concealed, the iniquity would thus be in possession of the information necessary to its purpose.
But, on the other hand, if, the same number serving for both purposes, a pretence could be found by the dying man himself, or by any faithful friend or friends to whom it might happen to be placed in company with his unfaithful ones,—an additional chance would thus be given him for escape from such iniquitous restraint.
That it would be no better than a chance, is but too apparent; because the spirit of rapacity, which by the supposition is on the alert, understanding him to be desirous of executing an instrument of contract, would naturally be suspicious of its being a will; and, on that supposition, would endeavour to prevent it.
But what might also happen is, that, at that same conjuncture, an instrument or instruments of contract of some other nature might require to be executed by the sick person: contracts which, being in the view of the supposed intended oppressor beneficial or necessary to the interest of the sick person, in respect of the property on which the eye of concupiscence had fastened itself, it might, in the view of the intending oppressor, be for his advantage upon the whole to suffer the execution of the instrument, notwithstanding the risk attending it. And, in a case like this, no chance, however small, that can contribute to preserve the helpless against the machinations of power at that time despotic, ought to be neglected.
The witnesses (supposing two at least,)—should it be required that, at the time of the attestation, they be present to each other, as well as to the party of whose act of authentication their signature is understood to declare their perception,—or should that circumstance be passed by without notice?
By their being present to each other, understand in the character of attesting and subscribing witnesses, the act of attestation and subscription being performed at the same time by both, and each of them being apprized of the part borne in the transaction by the other.
Of a requisition to this effect, the advantageous tendency is indubitable: but neither is it altogether free from tendencies of an opposite nature.
1. The advantage consists in the additional difficulty it opposes to forgery in the way of fabrication. If the person to whose profit the counterfeit disposition of property is designed to operate, be not capable himself of penning the instrument, and at the same time annexing his signature in the character of an attesting witness,—then (unless the penner of the instrument, making his own signature in the character of an attesting witness, is able to counterfeit with sufficient skill the handwriting of another person, representing that other person as acting in the character or another attesting witness,) the fabrication cannot be effected or attempted unless two persons, acting at the same time in that criminal and dangerous character, have been engaged.
The first falsely attesting and subscribing witness being procured at one time—the second (it may happen,) with his signature, was procured at another: the instrument (to comply with the supposed requisition of the law) bearing on the face of it a statement, declaring (though falsely) that, at the time or the attestation, both the individuals, whose names, written by themselves, appear together in the character of names of attesting and subscribing witnesses, wrote their respective names at the same time. But, by the supposition, this asserted simultaneity is false; the first was never seen, perhaps, by the second. Here, then, is a story, which, though false, they will each of them, in case of counter-interrogation, have to support as true. In these circumstances, though neither should quarrel with the penner or with each other, the difficulty they will labour under in their endeavours to give credibility to the false story under the scrutiny of cross-examination, will apply to their imposture such a check as would not have applied to it had the requisition of simultaneity been omitted.
2. The disadvantage consists in the difficulty thrown in the way of making a fair and genuine will, in the case in which the interest of the person or persons in whose power the dying testator is placed by the weakness incident to his condition, has engaged them to use their endeavours to prevent it. Suppose him to succeed in engaging the assistance of one faithful friend—that friend, taking advantage of a momentary opportunity, subscribes his name, before there can be a certainty of his engaging another. Some time after, accident, of the industry of the first faithful friend, sends in another to repeat the office and complete the attestation: no other opportunity, no other assistance, presents itself. Under these circumstances, had simultaneity been rendered necessary on pain of nullity, nullity must have been the result.
The two objects being thus in a state of conflict,—to which shall the legislator give the preference?
Answer: To guard against the prevention of fair wills, is the preponderant object.
How important, in the character of a security for life against wickedness or carelessness, the continuance of the right and faculty of making a last will to the latest moment is, has been already brought to view. By the requisition of the formality in question (if on pain of nullity,) the exercise of this important right is rendered more dependent than it would be in the contrary case, on the will of those in whose power the sick man happens to be placed. Being better pleased with the disposition which (whether by the general rule of law, or by a will already made and still in existence) they consider as having been made of his effects,—it is, in this state of things, more easy to them, than in the opposite state of things it would be, to prevent, for this time, his making any different disposition of his effects; and (to make sure of his not doing so at any other time) to prevent his continuing any longer in life.
Against that species of iniquity which consists in giving a man’s property a disposition which it was not his wish to make of it, the obstacles that not only may be, but in practice actually are, opposed, are forcible and abundant: punishment, in most countries capital, and everywhere very severe. To the opposite species of iniquity, though in respect of mischief differing by so slight a shade, no such punishment, scarcely anything in the name of punishment, has anywhere been opposed.
To be engaged in a scheme of forgery, is what few persons are competent to, even if disposed, to engage others in the like scheme, and with success, still fewer. On the other hand, to keep out of a sick room those who have no right to enter it, is no more than almost any man is competent to, who, being in the room, is in possession of it.
Such is the difficulty, such the dilemma, where, for securing observance of the formalities regarded as conducive to the prevention of mal-practice in this field, pain of nullity is employed. Obstruct in the way in question (viz. by requiring simultaneity of presence on the part of the attesting and subscribing witnesses) the procuring of unfair, or fabrication of spurious wills,—you obstruct in a still greater degree the making of fair and genuine ones.
To the inflexible pain of nullity, substitute the natural and ever proportionate pain of suspicion, and the difficulty vanishes—the dilemma has no place.
Distinction between regular wills and wills of necessity.
Taking into consideration, on the one hand, the danger of spuriousness or unfairness for want of formalities (whatsoever may be the operations thought fit to be prescribed or recommended in that view,)—on the other hand, the possible, and not altogether improbable case, of the existence of the need, coupled with the desire of making a will, at a time when the observance of these formalities in the whole or in part is impracticable,—a distinction seems to be called for, such as may be expressed by the terms regular will, and will of necessity.
By the term a regular will, may be designated a will, in the expression of which, whatever formalities have by the legislator been prescribed or recommended, have been (that is, upon the face of the will appear to have been) observed; and which, therefore, on the face of it, and setting aside all extraneous indications, is pure from all suspicion.
By a will of necessity, may be designated any will, in the expression of which these formalities have all or any of them failed of having been observed: from which deficiency a ground of suspicion will naturally be attached to it; and a warning will be given to the judge to inquire and consider, whether the observance of those formalities which (forasmuch as regularly they ought to have been) naturally in case of a fair and genuine will would have been observed, was prevented by any necessity.
The supposed will (for example) is not committed to writing, but orally delivered; or, being committed to writing, is written not on will paper but ordinary paper: and, in either case, in a handwriting not purporting or appearing to be that of the testator; or without signature of the testator; or without the signature of any attesting witness; or with the signature of no more than one attesting witness.
It being supposed that the law by which the observance of these several formalities has been recommended, has been sufficiently notified, in the manner already explained,* —then comes the question, how—supposing the will to be a fair and genuine one—how can it have happened that the formality or formalities not observed, failed of having been observed?
Examples of states of things in and by which the observance of formalities may, without prejudice to the genuineness or fairness of the will, have been prevented:—
I. Omission to be accounted for,—the will not committed to writing, but addressed to some person or persons, separately or in presence of each other, by word of mouth:
1. Scene, a private ship at sea. The testator a passenger, or one of the crew. The master,—able of course to write, but the testator and he not upon terms of amity,—is engaged by interest to oppose the making of the will now in question. This interest may arise out of the disposition made by the law in case of intestacy; or out of a will already made, and now proposed to be revoked or altered.
2. Scene, an uninhabited or thinly inhabited country, such as the wilds of America; or a country inhabited by a people alien in language and manners to the testator; for example, a place such as Asiatic Turkey, or Arabia: the testator an European traveller, without any European servant, master, or other companion, able, and at the same time willing, to render the service of penmanship.
3. Scene, a prison, or other place of confinement, domestic or foreign, lawful or unlawful; a mad-house, or other secluded spot, into which the testator has been conveyed by fraud or force, for the purpose of preventing his making a will, which he was supposed to have it in contemplation to make.
II. Omission to be accounted for,—non-use of will paper:—The will made in a place (such as a foreign country) where no will paper was to be had.
III. Omission to be accounted for,—non-employment of a notary:—No notary at hand, or none obtainable within the time:—the testator not able to purchase the assistance of such a person:—the only persons of that description within reach, in a state of enmity with the testator, or on some other account (such as connexion with a party meant to be disserved by the will) regarded as incompetent:—Or, the dispositions in the will too simple to present a demand for professional assistance.
IV. Omissions to be accounted for,—body of the will not in the handwriting of the testator; onomastic authentication not in the handwriting of the testator:—The testator a person rendered (by want of skill, or by infirmity) unable to write.*
Of the formalities brought to view, the observance will, in the case of a regular will, be at any rate, at the hands of the legislator, the subject of recommendation. In what instances (if in any) the several recommendations should, by pain of nullity, be converted into requisitions—indispensable requisitions—will depend, partly on the state of society in the country in question (for example, in respect of obtaining at a short warning the requisite assistances;) partly on the provision made for notification (viz. of the requisition thus proposed to be made obligatory.)
Supposing, in the case of a regular will, the recommendations thus converted into requisitions,—then will come for consideration the question, whether to extend the requisition to the cases above indicated as capable of presenting a demand for the allowance of a will of necessity. If here, too, it be thought fit that the recommendations be rendered peremptory, on that supposition the distinction is of no use. If—in the case of the regular will the recommendations being rendered peremptory—in the case of the will of necessity they be left on the footing of recommendations,—the use of the distinction is apparent. But even supposing them in both instances left upon the footing of recommendations, the distinction will not be without its use: for if, in circumstances which present no demand for the allowance of the will of necessity, the formalities remain any of them unobserved, such non-observance will, in the character of an article of circumstantial evidence tending to probabilize spuriousness or unfairness, operate with much stronger force than in the contrary case.
Aberrations of English law in regard to the authentication of wills—Examination of the Statute of Frauds, in so far as relates to wills.
If the above principles are right, the course pursued in relation to this subject by the English law must be allowed to be improper and inconsistent in a very extraordinary degree.
In the case of deeds inter vivos—a case in which the nature of the transaction admits not only of the employing writing, but of the calling in the assistance of attesting witnesses,—writing is indeed rendered obligatory, but the assistance of attesting witnesses is not rendered obligatory.
On the other hand, in the case of wills—a case in which it must not unfrequently happen, not only that the means of giving to the disposition in question the written form, but also the probability of obtaining the assistance of attesting witnesses, may be wanting,—in one case, and that a case which is looked upon as the case of principal importance, not only a written form for the testamentary discourse, but the assistance of attesting witnesses, and that to the number of three, is inexorably required—required on pain of nullity.
In the case of last wills, a set of formalities are prescribed, and of course on pain of nullity, by a statute commonly and not inappositely termed the Statute of Frauds (29 C. II. c. 3.)†
So far as this species of contract is concerned, three points in relation to this statute are beyond dispute: the mischievousness of it—the uselessness of it—and the corruption in which it was begotten, and has been preserved.
The mischievousness of it is legible in glaring colours, in the multitude of fair and genuine wills of which it has been destructive, and the enormous mass of litigation and lawyers’ profit of which it has been the fruitful parent.
The uselessness of it has been displayed by a course of experiment that has been going on for nearly a century and a half. All this time, one half the property of the kingdom, by much the larger half,* has been left without any such security; and no inconvenience for the want of it has ever been so much as suspected.
The corruption is manifested (if it be possible for corruption when enveloped in long robes to be made manifest) by the enormity of the profit to lawyers, coupled with the enormity of the misery to non-lawyers, of which it has been the efficient cause.
Is it in the nature of it to defeat more fair and genuine wills, than it prevents or exposes unfair or spurious ones? Then why apply it to property in any shape?
Is it in the nature of it to prevent or expose more unfair or spurious wills, than it defeats fair and genuine ones? Then why refuse the benefit of it to property in the shape to which it is not applied?†
From the non-observance of the formalities in question, prescribed as by it they stand prescribed, can any rational conclusion be formed in relation to the fairness or unfairness, the genuineness or spuriousness, of a last will? then is the same last will fair and unfair, genuine and spurious.
Let the testator leave property to the value of £20,000—whereof £10,000 in one of the two shapes, £10,000 in the other. The same last will, authenticated by one and the same act or acts of authentication, is fair and genuine with respect to the one sum, unfair or spurious with regard to the other.
Oh! but immoveables, being a species of property of more importance, require better protection than moveables: a sophism from the crude conceptions of feudal times, carefully preserved, like so many others from the same stock, by the cunning hand of lawyer-craft. Ten thousand pounds’ worth of land, how much more is it worth than ten thousand pounds’ worth of money?
But even that sophism, shallow as it is, has no place here. For the self-same piece of land, the £10,000 worth of land, according as the lawyer has scribbled one sort of jargon or another on the occasion of it, shall be subject to the formalities, or stand exempt from them: and vice versâ, money, the £10,000 worth of money, by the effect of another jargon, may have been subjected to the same rules as land.
The difference between what is called real and what is called personal property, turns frequently upon a word, or a phrase. Let the words be, I give to A. my house in D. for ninety-nine years, if he shall so long live:—these words, in the testator’s own writing, are sufficient—no witness is necessary. Let the words be, I give to A, my house in B, for his life:—witnesses no fewer than three are necessary. In the same page, with his own hand, let a man give to A, one of his houses in the one way, and to B, the next house in the other way,—then is this will of his half genuine, half spurious: it is his will for the one purpose, it is not his will for the other.
Where is the absurdity which the lawyer will not utter?—where is the mischief to which, so long as it can be done with profit and with safety, he will not continue to lend his hand?—where is the absurdity, which, so it come from the mouth of the lawyer, the non-lawyer will not worship?—where is the oppression under which, so long as he sees the hand of the lawyer having a part in the production of it, he will not submit with patience?
Whichever of the two systems of policy above spoken of—the strict or the lax system—be the most reasonable one, it makes no difference with regard to the wisdom of this law. Mischievous by the whole extent of it, or else too scanty by a space greater than the whole extent of it: such is the alternative.
Who the authors were—what their views and intentions, are points that make no sort of difference. A consideration somewhat more material, is the poisonous influence of it upon the public morals. By what it neglects to do, it leaves the door open to wills in multitudes, which, though unprovided with the prescribed formalities, everybody sees to be fair and genuine; and which, as such (the formalities not extending to them) are permitted to take effect. By what it does, it shuts the door against other wills, the fairness of which is equally indisputable; but which, notwithstanding that acknowledged fairness (the formalities not being observed) it crushes without mercy. But, so many wills, not fraudulent or spurious upon the face of them, as it invalidates, so many acts of palpable and notorious injustice does it invite and encourage men to commit. In the author of this law, supposing him a lawyer (and who but a lawyer could be the author of such a law?) an eye unstained by professional prejudices may behold as clearly as in the author of any sort of other corrupt or corruptive law, the legislator of whom the poet speaks, when he says, leges fixit pretio atque refixit. In his capacity of legislator, he invites men to possess themselves of property which they are conscious was not intended for them by the lawful owner: he invites them to enrich themselves by notorious injustice, that he or his brethren may come in for their portion of the spoil.
Had the inconsistency been avoided—had the requisition of the formalities been extended to property in every shape,—the real temptation to injustice would have been as great, but the contempt shown for the known laws of justice would not have been so open and scandalous. The legislator might then have been understood to say,—Wherever these necessary formalities are not observed, my opinion is that the will is either fraudulent or spurious. The party interested (whatever might have been his real opinion) might with some degree of plausibility at least, have been allowed to say,—Such being the opinion of the legislator, a person of consummate wisdom and untempted probity, can anybody, consistently with reason and candour, profess to disbelieve me when I declare that his opinion is also mine? With this plea in his mouth, sincere or insincere, a man at any rate could not be publicly convicted of insincerity and injustice. But when, to justify the law in point of prudence and common sense, the same will, made by the self-same person under the self-same circumstances, must be pronounced fair and fraudulent, genuine and spurious—genuine as to property in one shape, spurious as to property in another shape—when the same thing must be pronounced, at the same time and place, to be and not to be,—all pretence of honesty must be at end. What everybody must see, is, that by no man, either in or out of his senses, was any such opinion ever really entertained.
No man ever was or ever will be besotted enough to say, either that a will of land to a given amount is in itself more apt to be unfair than a will of goods to the same amount,—or that, in the case of the will of land, the preventive efficacy of a given set of formalities as against unfairness, will be greater than in the case of a will of goods to the same amount.
Whence, then, came the distinction? Evidently from the narrow views and selfish prejudices of two different sets of lawyers. The common lawyers had possession of the cognizance of wills, so far as concerned lands; meaning always (for such is the absurd and for ever inexplicable and inconceivable distinction) where the quantity and quality of interest denominated the estate a real estate. The civilians—a tolerated remnant of a foreign breed of lawyers, the ecclesiastical Romanists,—had possession of the cognizance of the same instrument, so far as concerned every other species of property. In the adjustment of the business under the new invented rule of evidence, each, preserving his own share in the division of power, was to retain the privilege of gratifying his own prejudices. The same fact which was to become false in Westminster Hall, was to continue true in Doctors’ Commons. The same will, the same sentence, written by the self-same hand, attested by the self-same pair of witnesses, was to be spurious or genuine, according as a man with fur upon his gown, or a man in a gown without fur, were to sit in judgment on it. So monstrous were the absurdities which the penners of the Statute of Frauds, having been fed with in their respective schools, scrupled not to cram down the throats of their fellow-subjects by the power of the sceptre.
Where, amidst all these lawyers, guides blind and mercenary, was the legislator?—where was the man who, regardless of professional prejudices, possessed probity and intelligence to look to the security of property and the tranquillity of the people? Alas! nowhere. Neither in those days, nor down to the present, has any such character ever appeared. The true shepherd of the people is a comforter not yet born. Look to his place,—you find in it none but hirelings.
Under the English, as under other systems, on the subject of wills and other contracts, as on so large a portion besides of the field of law, the rule of action, such as it is, has had for its authors, not legislators, but judges. In the making of it, the interest the promotion of which has been all along aimed at—to which it has all along been made subservient, has been, not the interest of the community at large, but the private interest of those by whom it has been made: and in the pursuit of this private interest there is no degree of vexation and misery, which, on this part of the field as on every other, they have not been ready and satisfied to produce.
If it were possible that a state of things so manifest and undeniable could be matter of doubt to any one who has courage to look it in the face, this one example should suffice for the removal of the doubt.
Right and wrong, wisdom and folly, felicity and misery, must all be the same thing, ere the conduct of the English legislator, under the guidance of English judges, on this part of the field of law, can find so much as an excuse.
Hold up to the view of the man of law any one of these abuses,—if not so much as the shadow of a pretence can be found for the justification of it, he solemnizes his tone, he knits his brow, and beholds in the air a host of difficulties. But these difficulties,—what are they? None but of his own making: the only difficulties he can find to plead, are the difficulties which he makes.
The course that presented itself as best adapted to the purpose has been brought to view above: were it ever so well adapted, the putting it in practice would not be altogether exempt from difficulties. But a course by which a great part of the abuse would be removed, would not be attended with any the smallest difficulty. Do away at one stroke the distinction between a will of realty and a will of personalty: whatsoever formalities suffice for a will of personalty, let them suffice for a will of realty: repeal pro tanto the Statute of Frauds.
The real difficulties lie in removing the film of prejudice from the eyes of non-lawyers—in giving them the courage to look their own interest in the face.
As to the man of law, to cause him to lend a willing hand to the removal of imperfection or abuse in this shape or any other, is matter, not of difficulty, but of moral impossibility. Call upon a body of men, and such a body, to sacrifice each of them his own most important interest to the public interest!—as well might you call upon each and every one of them to jump down his own throat.
Word-of-mouth wills are, in certain cases, allowed by the Statute of Frauds. In the description of these cases, the penman had evidently the case of necessity in view. But in the description, or rather the exemplification, which he gives of that case, he is far indeed from covering it with exactness. The case of last sickness, and that too disfigured by obscure and indistinct modifications, is the case he employs for that purpose. But the case of last sickness is far indeed from being well adapted to the purpose. It goes beyond the mark: it falls short of it. There may be sickness—sickness terminating in death, and yet no necessity: no impediment to the fulfilment of the formalities in their utmost latitude. There may be necessity without sickness. A man in health is about to embark in a perilous adventure—no will made, and the means of making a regular will not at hand: to embark in an open boat on a high sea: to attack a robber: to plunge into a torrent to save a person from drowning: to plunge into a deep well to save a person from suffocation.
Among the provisions made by the Statute of Frauds, under the notion of preventing spurious or incorrect last wills, when delivered, or supposed to have been delivered, by word of mouth, one (sect. 20) is in these words:—“After six months passed after the speaking of the pretended” (instead of saying supposed) “testamentary words, no testimony shall be received to prove any will nuncupative” (meaning by word of mouth,) “except the said testimony, or the substance thereof, were committed to writing within six days after the making of the said will.”
No person being here specially designated as the person, or as a person, by whom it is required that the recordation or supposed recordation shall have been made, the consequence is, that it may have been made in any manner, and by any person, so that it have been made within the time. But of this latitude another consequence is, that, supposing such recordation to have been made by any one person, and (as is natural enough) by him alone, the validity of the will remains thereby in his power; and he may either, under the influence of ill-will, suppress the testament altogether, or, under the influence of rapacity, sell his testimony or the suppression of his testimony (and all this without exposing himself to punishment as for perjury) to whichsoever of the parties interested will give him the best price.
As to the impropriety of frustrating the known will of the testator, and the honest expectations of any number of persons, for want of compliance with a requisition which nothing is done to make them acquainted with, and which there is an abundantly preponderant probability that they have not been acquainted with in time,—it belongs not to the present purpose.
What does belong to the present purpose is, that,—if, instead of a requisition on pain of nullity, a recommendation were given on pain of suspicion, to call in the assistance of a notary honorary, or even professional,* in the manner above proposed,—the two antagonizing objects—prevention of spurious and unfair wills, prevention of the frustration of such as are genuine and fair—would be much better secured and provided for than under that absurd or treacherous statute.
The matter being thus not only committed to writing, but lodged in safe custody, the door would therefore be effectually shut against the corrupt practice above indicated. Thus far against suppression of genuine wills, and moreover, against unfair wills—against will-rendered unfair, for example, by undue coercion, or by mental infirmity,—there would always he a chance, more or less considerable, of the clearing up doubts, one way or other, or at least of the preservation of otherwise perishable evidence, by such interrogatories as it might happen to the notary to collect answers to, in pursuance of the instructions provided by the law.
In the same statute, on the same subject of oral wills, are regulations in abundance, professing to have for their object the frustration of spurious wills of that description, but having for their effect, probably to a greater extent, the frustration of fair and genuine ones, and for their object (as usual) increase of uncertainty, and of litigation, with the sweet attendants for the sake of which it is promoted.
Three witnesses, at the least, required not only to have been present at the writing of the will, but the same three witnesses required to concur in proving it by their oaths: whatever be the distance of time to which it may have been in the power of the dishonest person whose endeavour it is to frustrate a fair and genuine will, to delay the possibility of proving it. Keep on feeing us till one of the witnesses is dead, and the property is yours.*
In cases of all sorts without distinction, the mischiefs resulting from exclusion of testimony, and in particular from exclusion on the score of interest, will be fully stated hereafter.* In the case of testaments, the mischiefs had been so severely felt, and so fully recognised, that about eighty years ago they attracted the notice of the legislature. To do away this ground of exclusion altogether, either in regard to transactions of the sort in question, or in short in regard to any case whatsoever, would have been too great a sacrifice of professional prejudice to public utility—an exertion far beyond the wisdom of the time. Recourse was had to a sort of half measure—an expedient which, though not equal to the cure of the mischief, yet, in the character of a palliative, was not altogether without its use. To do away the nullity altogether, would have been too wide a stretch—too bold a measure: instead of that, they transferred it from the whole will taken together, to each particular bequest. A legacy being given to a subscribing witness, the bequest of this particular legacy was declared void, and, at that price, the attestation and deposition of the legatee, in the character of a witness, were to be held good.
The persons by whom it is most natural that a man’s deathbed should be surrounded, are the persons who, in case of his making a will, are, in consequence of his kindness towards them, most likely to find themselves in that sort of situation which will give them an interest in the support of it: near relations—old friends—old servants. But interest (it was said) is a sort of taint, the effect of which is to give a legal foulness to a man’s evidence. To clear away this foulness, requires a legal purge. There are three purges applicable to this case: receipt of the legacy, refusal to receive it, refusal to pay it: three diaphoretics these, any one of which has virtue enough to carry off the peccant matter.*
Such is the prescription. In point of form, nothing can be fairer. But how stands it in point of effect and substance?
The will is either fair or unfair. Is it a fair one? there is no mischief to prevent: injustice is the fruit of the law, and the only fruit of it. To invalidate the entire will would have been one injustice: to invalidate the legacy, is another injustice. Thus much may indeed be said,—but it is the best that can be said,—the injustice introduced is less than the injustice done away.
If imposition be at work, what is there in the security afforded against it by this arrangement, that can be relied upon for preventing it? The reward for dishonesty, instead of being held up to view upon the face of the will, must be covered up: as, in this like all other cases, it is most natural it should be. Confidence—a certain measure of it—is necessary to all conspiracies. In the case of murder, where the contriving head engages an executing hand, the stroke, if struck, must be struck either before payment, or not till afterwards: in the first case, the assassin trusts the suborner; in the other, the suborner trusts the assassin. Suppose no confidence, an unfair will can no more be set up for hire, than a murder can be committed from the same motive: suppose confidence, an unfair will may be set up as well when the legacy is made void, as when it is made payable.
By the act which this act takes upon itself to amend, three subscribing witnesses are made necessary. Under these circumstances (forgery out of the case,) no unfair will can have been brought into existence, without a conspiracy between that number of subscribing witnesses. But, in case of a set of persons thus linked together by interest and guilt, what difference can it make to them whether a legacy left to a subscribing witness is exigible or not exigible? Such as are the shares agreed upon, such, in so far as the conspirators are true to one another, will be the shares respectively received. If, when the time comes, the executor or other paymaster feels himself disposed to be false to his confederates, the circumstance of their wages being specified in the form of a legacy, will not prevent his being false to them: if he is disposed to be true to them, the circumstance of their wages not being specified in that form, will not prevent his being true to them. The agreement made, and the executor pitched upon, of what use can it be to him, or to his accomplices, that the wages of their iniquity should be posted up on the face of the will? What security, what advantage can it be in any shape to any of the conspirators? The effect would be—what? Not to give security to the scheme, but to draw suspicion upon it, and endanger the success of it.
Put any case of unfairness—forgery, obtainment by compulsion, obtainment by misrepresentation and fraud; in either case, sanity or insanity:—the argument applies still with equal force.
The utility of the provision is, upon this view of it, greater in appearance than in reality: the mischievousness of it will be found greater in reality than in appearance.
The law of evidence, founded as it has been upon the principles that have been displayed, may be considered as a great school of injustice, in which nothing but injustice is to be learned, and in which every rule and maxim it gives birth to, imbibes the original taint, and comes out a lesson of injustice.
Distribution of the bulk of the property—donation of minor legacies. Such is the distinction, which though nowhere announced in words, nor even capable of being marked out by any precise boundary lines, is not the less perceptible upon the face of the generality of wills. By the former, the bulk of the property is distributed among the nearest relatives: by the latter, tokens of remembrance are given to persons situated without the pale of near relationship—to particular friends, to old and faithful servants. In the eyes of unsuspecting probity and uncorrupted common sense, how natural the association, how amiable the reciprocity, that the persons pitched upon to receive the token of affection should be the persons called upon to accept on their parts the honourable charge—to render on their parts the honourable service.
After making provision for the domestic circle—after taking care of his natural and necessary dependents, and mentioning in his will, not so much for provision as for honour, the most intimate of his friends without the circle, and the most confidential of his servants,—this, says he to them, addressing himself to them in language suited to their respective stations—this, says he, is my will, and be you my witnesses to it. The testator departed, and the will opened, up stands the legislator, and says to the family—You see the legacies that were intended: do not pay them: you need not, unless you choose. Do Englishmen in general accept of the offer thus made them by their rulers? I think better of them than to suppose it. The wages of iniquity are held out without ceasing, to corrupt the people; but I believe it is but here and there that in this instance they are accepted.
On this occasion, as on so many others, the iniquity of the law depends in no small degree upon the care taken to conceal the knowledge of it from the body of the people. Suppose the law in this behalf universally known, the effect of it would be simply to oblige testators to provide themselves with persons that are indifferent to their affections, to serve them for attesting witnesses: but in fact it is generally unknown; and thence comes the immoral tendency of the provision, as above held up to view.
Persons who set about the fabrication of false wills—these are the persons who will be sure to make themselves masters, as far as is in their power, of whatever has been done upon the subject by the law. Illiterate they cannot be: persons professionally acquainted with the law they will (some of them, the head manager at least, will) probably be: the suspicion and anxiety inseparably attached to guilt, especially to guilt in this insidious shape, will be almost sure to put them upon this inquiry in the first instance. These, then—the only description of persons against whose dishonesty the expedient is intended as a guard—are the very persons on whom it will not operate. They know, they knew well enough before the act, that a legacy given to any one of them would be enough, if not to destroy, at any rate to endanger, the whole will. By them, care will be taken not to insert any such legacy. The persons, the only persons, by whom any such legacy was ever likely to have been inserted, were real fair testators—testators meaning in the simplicity of their hearts to bestow these manifestations of kindness upon their friends, little suspecting that the same law which openly professes to give effect to a man’s will, defeats it by counter-determinations, which it suffers to remain secret ones.
So much for the practical enactments of English law. The nomenclature used by lawyers on the subject of deeds and wills, is, in many instances, remarkably unhappy: the effect of it will naturally be to present erroneous conceptions—at least to all men but themselves.
1. Deliver used instead of declare or recognise. I deliver this as my act and deed. To this belongs the conjugate delivery: the delivery of a deed. But, in common speech, a thing that is said to be delivered is understood to pass out of the possession of the person by whom it is delivered, into the possession of some other person—the person (if there be any determinate person, which is what the word seems to imply) to whom it is delivered. And such is the import given to it by lawyers themselves, in other cases: for instance, in the case of an action for goods sold and delivered. But, in the case of a deed, the instrument does not necessarily pass out of the possession of him whose deed it is, and by whom it is said to be delivered: it is only by accident, if it happens on that occasion to be delivered to anybody else; in particular, if at that same time it happens to be delivered to any of the other contracting parties. Of the word declare, the import is alike known to every man who is acquainted with the language. It conveys the idea meant to be conveyed: it conveys not to any mind any idea that is not on this occasion intended to be conveyed.
In the case of a will, the term is particularly improper. It is among the characteristic properties of this species of instrument, that no man has a right to have it delivered to him. The most natural and customary, and in most instances the most proper person to have the custody of it, is the testator himself.
True it is that the word declaration will not by itself serve to convey the whole of the signification which lawyers have contrived to include in the word delivery. This conjugate of the word declare, cannot of itself be made use of in this sense. In the phrase I declare this to be my act and deed, the sense is indeed as complete as in the phrase I deliver this as my act and deed. But, though the phrase delivery of a deed or will has a known meaning, the phrase declaration of a deed or will has no such meaning.
2. Publication, used as synonymous to recognition: publication, instead of authentication. In a case where concealment as against the public in general, and, in many instances, secrecy as towards every individual without exception, is a lawful and rational as well as a very common object,—publication, a word in general use to denote the opposite of concealment, to put a direct negative on every such idea as that of secrecy and concealment, is particularly incongruous. An object which (as above mentioned) calls for the legislator’s care, is the making provision for rendering it practicable to a testator to give a sufficient authentication to his will, at the same time that even the fact of his having made a will remains a secret to all the world. Secret authentication is a term I can, on this occasion, make use of without impropriety and without scruple. But secret publication? Who could be allowed to speak of secret publication? By whom would any such expression be endured?
The word authentication, correct and expressive as it is, I would nevertheless have avoided, could I have found a more familiar one that were equally expressive, to take its place. Why? For this reason, that it is not so familiar as could be wished. By the bulk of the people it would scarce be understood without inquiry and explanation. But a word which, until explained, may chance to convey no idea, is better beyond comparison than a word which, to every one who hears it, presents a false one—produces a degree of misconception such as nothing but long practice in the use of an incongruous language will enable a man effectually to get the better of. For my own part, familiarized as I am with a system of nomenclature which seems to have had confusion and uncertainty for its object, in the present instance I can never get rid of the impression without pain and difficulty. How much more difficult the task to the unlettered peasant, the handicraft, the petty shopkeeper!
This caution will be apt to appear inconceivable to a lawyer. But, to a man to whom it would be matter of regret and even of shame not to be understood, and above all in matters of law, nomenclature is no light matter. On a man who cares not whether the law be understood or no, or who, if he saw to the bottom of his own mind, would acknowledge (as some have done) that it should be either not understood or misunderstood by the generality of his fellow-subjects, matters of this sort sit light and easy.
3. Execution, instead of recognition. Ambiguity and uncertainty, one would think, were the very ends in view of jurisprudence. She has certainly no dislike to them, nor any the smallest desire to get rid of them. Speaking of a testator, they say he executes his will. What then? Is he the executor of his own will? Not he, any more than the executioner of it.* The executor is another person. But the executor of the will,—of him is it not also said sometimes that he executes it?
Connected with the verb to execute, is its conjugate the substantive execution. Whose act, then, is it, that is expressed by the term execution? May it not be the act of the testator? May it not alike be the act of the executor, whose act it can never be in the other sense?
So, again, in the case of a contract. One mode of executing it is to authenticate the instrument by which the obligations are expressed; another way is to fulfil those obligations. What a nomenclature, in which the same word is employed to express the creation of an obligation and the annihilation of it!
OF PREAPPOINTED EVIDENCE, CONSIDERED AS APPLIED TO LAWS.
Preappointed evidence having been considered (as above) in its application to legalized contracts—to those private sorts of laws, in the establishment of which the legislator and the individuals empowered by him operate in conjunction,—we come now to speak of the same principle considered in its application to laws in the common acceptation of the word, viz. those rules of action, in the establishment of which the legislator operates alone.
Naturally, the consideration of the simple object should have preceded that of the complex. But, by bringing to view the subject of legalized contracts in the first instance, an object of reference and comparison was set up, by which, now that the application of the principle to laws is brought upon the carpet, suggestions not uninstructive may be afforded.
Of the four evils, to the prevention of which the application of the principle has been seen to be capable of being directed in the case of legalized contracts, there are two—viz. spuriousness and unfairness—to the prevention of which, in the case of laws, it is in the practice of nations so generally and habitually directed, that the application of it can scarcely be considered as an object of inquiry belonging to the present work.
There remain two other evils; viz. non-notoriety with respect to existence, and uncertainty with respect to import. Happy the lot or mankind—much happier than, in England more especially, it is in a way speedily to be—if, for the defence of the community against these crying mischiefs, the principle of preappointed evidence had received the all-embracing application it is capable of, or even a degree of application equal in extent to that which it has received in the case of contracts.
In the case of a contract, scription, considered in the character of a security against non-notoriety in respect to the existence of the contract and uncertainty as to its import, suggests itself naturally to individual reason; and would, by individual reason, be, in an extensive degree, even without the intervention of legislative authority, adopted.
When the practice of the art of writing had begun to be to a certain degree general, in such sort that any factitious demand for service in this line seemed no longer in danger of not being followed by supply,—the legislator was, with few or no exceptions, among the civilized or civilizing nations of Europe, seen to interpose his authority: converting into a legal obligation a precaution to which, till then, had belonged no other origin than individual prudence.
In the instance of individuals, this precaution, in so far as freely adopted, had for its manifest and indisputable final cause, the prevention of those evils. But on the part of the legislator,—at any rate on the part of those by whose counsels the hand of the legislator was on this occasion put in motion and guided,—this precaution had no such final cause.
The class of persons by whose counsels the hand of the legislator was at that time, and in general, throughout the civilized part of the world, continues to be, guided, were and are professional lawyers: men who, whether in their original character of advocates, or in their subsequential and superior character of judges, were and are, under the influence of the fee-gathering principle, knit together into a compact body by the strongest and most indissoluble ties—by one common interest, impelling them in a direction in almost every turn opposite to the interest of the community over which they rule, and which they profess to serve.
Individuals, in the use spontaneously made of writing, had of course (as above mentioned) for their object and final cause, the prevention of the evils above mentioned; viz. non-notoriety (including oblivion) in regard to the existence of the contract, and uncertainty in regard to the import and effect of it.
Lawyers, the persons by whose counsels the hand of the legislator was guided, had not,—in the nature of man they could not have had,—any such object. Their object was, the making of power, influence, and profit for themselves; i. e. the making of business—in their case the natural, and naturally the sole, parent of that amiable progeny. So accordingly they ordered matters, that what they had ordained to be written, none but a lawyer could be supposed to be, indeed scarce any could be, competent to write.
Had the prevention of those evils—or of any evils other than the only one to which, in their situation, it was in the nature of man that their sensitive faculty should be sensible, viz. insufficiency of business—been in their wishes and endeavours,—the anxiety thus manifested by them to see those same evils prevented, in so far as liable to have place in the case of those expressions of will in the formation of which the individual and the legislator were acting in conjunction, would have applied itself, and with equal force, to all those expressions of the will, in the formation of which the legislator (by himself, or his subordinates and substitutes the judges) acts alone.
But, in regard to the rule of action, by whomsoever framed, the real object has ever been (what, under such circumstances, it never can cease to be) not the prevention of uncertainty, but the increase of it. Hence it is, that, throughout the sphere of their influence, but nowhere with so much zeal and success as under the British constitution (under which their influence has by a concurrence of causes been rendered in a peculiar degree extensive and irresistible,)—it has been a rule of conduct with the legislature to leave the rule of other men’s action in a state of as complete uncertainty, or rather inscrutability and non-existence, as possible.
Instead of declaring, himself, what, on each part of the field of his authority, his will is, the course which, under the direction of these his treacherous guides, he has so assiduously pursued, has been to abstain from making known his will, or so much as forming one.
Everywhere (but nowhere among civilized men so completely as in Great Britain,) he has given up his subjects to the tormentors: he has given them up to be tormented without mercy, and in all imaginable ways, for non-compliance with a will which it has been the care of the tormentors should never be declared, nor so much as formed: tormented for non-compliance, where compliance was and is (having been studiously and effectually caused to be so) impossible.
Not but that there has all along been a pretended rule of action—a pretence for vexation and pillage never wanting. But this pretended rule of action, what has it been—what is it? A mere phantom—a figment of the imagination; in the composition of which the legislator himself, whose will it is pretended to be, has never had any the smallest share.
Dragged under the rod (though, where anything is to be got by excluding him, neither compelled nor suffered to come into the presence) of one of these lawyers or companies of lawyers,—a man is in one or other way vexed, and always by them and for their benefit, on pretence of his not having done something which he was never commanded to do, or having done something which he never was commanded not to do. Under the name of punishment, or under some other name, he is thus vexed: and, from such observation as men cannot be prevented from taking of the individual case in which the man is thus vexed, other men are left to frame to themselves, as they can, the conception of a law or rule of law: a rule or law completely imaginary, not framed by the legislator, nor so much as by the immediate author of the vexation, the judge: an imaginary law, such as, had it been real, might have warranted the decision under and by virtue of which he is thus vexed.
Where the rule of action is in the form of common law, there is no such thing, properly speaking, as a law, a general law: there is no such thing as any act of the legislator, any expression of the will of the legislator, in the case. The judge, to warrant his proceeding, is forced to have recourse to fiction—to feign the existence of a law, and, upon the ground of this imaginary law, to proceed as if it were a real one. He takes a survey of the cases that present themselves as bearing the closest analogy to the particular case in hand; he observes the decisions that have been pronounced by judges, by himself, his colleagues, or their predecessors, on the occasion of those cases; he considers with himself what the tenor or purport of a law would have been, supposing a law, a real law, made in terms such as would have warranted the decisions that (as above) he finds to have been pronounced, together with the decision which, in the case in question, he proposes to himself (on the presumption of its conformity to the general complexion of those decisions) to pronounce; and, upon this feigned law, the work of his own imagination, he passes judgment as if it were a real one.
Ask them in what words this pretended will stands expressed:—no answer; for answer is impossible.
Ask them at what time, in what place, it was formed and expressed:—still the same necessary silence.
Ask them by whom made or by whom expressed:—either silence or stark falsehood. Was it by them, or any of them? God forbid! they know their duty better: their bounden duty, their only right, is, not to make law, but declare it. Declare what? Declare that to have been made, which to their own perfect knowledge never was made? Give their own fictions, their own interest-begotten falsehoods, for realities?
Such is the phantom, the god of their own making, to which, under the eye of a conniving legislator, they compel obedience, or rather submission, on the part of his subjects; and in the name of which those too-patient subjects suffer themselves to be tormented, as if it were of flesh and blood. This is that idol, so indefatigably bedaubed with praise, in comparison with which all other praise is cold:—the wisdom of ages—the perfection of reason—that of which reason is the life.
Well might they cause it to be ordained, that contracts (those declarations of individual will to which they profess to give binding force) should be in writing, and thence provided with determinate assemblages of words for the expression of them: since, whatever degree of certainty might have been produced by those portions of written law, is obliterated by the patches of this species of unwritten unformed law, with which they are everywhere overlaid. The contract, which forms the apparent and pretended rule of action, is visible: but the practice, or conjectural rule of law, by which it will be found to have been annulled, or misinterpreted, or interpreted away, is not visible; nor can the effect of it be known, till, after the substance of the parties has been consumed in litigation, the existence of this rule is declared, that is to say, the rule is made, by the judge.
Thus it is, that, by requiring contracts to be in writing, they have thrown profit into their own hands. Had certainty been produced, their mass of profit would have been diminished. If, under such strong inducement to the contrary, certainty had been given by one branch of the partnership to the contract as it stood upon the face of its own words, that certainty would by another, the higher banch of that same partnership, be overruled and done away: by dint of nullities, seconded by a set of mutually conflicting and universally flexible rules of interpretation or construction, as they are called, and other unpromulgated, and unenacted, and spurious laws, of the same fantastic fabric: laws, which are neither laws of nullification nor laws of interpretation.
By notification of contracts themselves, nothing effectual is done—no security afforded, any further than as the effect which those contracts will have, is made known. But the effect of those contracts can no further be made known, than in so far as, in effect, and (to that end) in tenor, those rules are made known, by which the effect of the contracts is obliterated or transmuted.
But, by causing the tenor of these rules (that is to say, of any rules that have been or could be framed and settled in relation to the subject) to be consigned to determinate assemblages of words,—and thus, in manner as above proposed, or in any other manner, brought home, on the occasions which call for their being acted under, to the mind of those whose lot in life is made to rest upon them; by any such course, the real object of the whole system would, to so wide an extent, be counteracted and defeated: and hence it is, that as well those as any other arrangements, the effect of which would be to render knowledge possible, where ignorance has been made fatal, will, till they are accomplished (should it be their lot ever to be accomplished,) be reprobated, and pronounced (as everything that is good ever has been, and ever will be, by those to whose sinister interests, and interest-begotten prejudices, its aspect is unfavourable) to be theoretical, and speculative, and visionary, and mischievous, and impracticable.
When, by proper authority (by the authority of the legislator,) a law is abrogated,—the fact of its abrogation is no more exposed to doubt than the fact of its enactment: the same evidence, the same preappointed evidence, that serves for the establishment of the one fact, serves for the establishment of the other.
When, by improper, by usurped authority—by the authority of the sworn servant of the legislator, the judge, overruling and contemning the authority of his master—any such power is exercised,—confusion, confusion ever delightful and profitable to the authors of it, is the consequence.
By some compiler or copyist of statutes, the date of whose labour stands antecedent to the invention of printing, laws anterior to the reign of Henry III. were (at whose, if at any one’s, suggestion, or by what authority, is now undiscoverable) omitted. By this man, whoever he was, all those ancient laws were abrogated in the lump—abrogated, to use the language of Scotch law, by desuetude.
But desuetude is not a person, a legislator by whom laws can be abrogated: abrogated on pretence of desuetude, a law cannot but have been abrogated by the judge.
In Scotland, the expression of the will of the legitimate legislator is thus abrogated—abrogated ad libitum, by the judge, the Court of Session: abrogated, in virtue (it should seem) of what in Latin they call their nobile officium,—in English, the right, the avowed right, of doing what they please.
If in England this right has been no less constantly, and to a still greater extent, exercised, and by corresponding authority, it has never been avowed; it has as constantly been all the while disavowed and disclaimed.
OF PUBLIC OFFICES AT LARGE, CONSIDERED AS REPOSITORIES AND SOURCES OF PREAPPOINTED EVIDENCE.*
Official evidence, what—Topics for discussion.
In respect of the operation performed in execution of the functions, powers, and duties, for the execution of which the office was established, or is kept on foot, and the facts, or alleged facts, on which these operations are grounded,—every office (be its functions, powers, and duties, what they may) may be considered as a repository or source of preappointed evidence; it being among the objects in view in the institution of the office, that, as the facts come into existence or under review, the remembrance of them should be preserved.
Such was the advantage derivable and derived to justice, in some measure, from official situations; even in those times of intellectual darkness, in which, even among persons constituted in authority, the practice of the art of writing was not in universal use.*
But, by the extension which that master art has acquired, especially after the aid it has received from the operations of the press, whatever use may in this shape be derivable from the several public offices, has received in point of extent a prodigious increase.
In respect of the several legally-operative, or in any other point of view useful and important, facts, in this manner (whether with or without design) more or less effectually secured against oblivion, against concealment, and misrepresentation,—so far as these desirable effects are actually produced, so far all is well: that which is done coincides protanto with that which ought to be done; and, on this part of the field of legislation, nothing remains to be done by the legislator himself, or heard by him from any other quarter in the way of suggestion or advice.
But, in whatever degree, under the government of each country, it may happen to those several important objects to be actually and habitually accomplished, some considerations may be brought to view, which as yet will not be found altogether undeserving of notice, and which may be ranged under the following heads; viz.—
1. Uses derived or derivable from the masses of pre-appointed evidence, of which the several public offices are, or might conveniently be, rendered the repositories or the sources.
2. By what considerations a just estimate may be formed of the degree of verity or trustworthiness of the evidence thus afforded.
3. By what means the verity of the statements or narrations thus delivered, may most effectually be secured.
4. By what means the quantity of true and instructive evidence obtainable from these repositories or sources, may, upon terms of the greatest, and that preponderant, advantage, be increased: with preponderant advantage, reference being made to the several ends of justice, as well as to the sources derivable from the several departments of government, to which the offices in question respectively belong.
Uses derivable from official evidence.
Considered in the most general point of view, the evidence furnished by the several public offices, and (in virtue of the evidence so furnished) the institution of those offices themselves, may be seen at first glance to be, in two distinguishable ways, conducive to the ends of justice, and in particular to the support of the rights and obligations established or meant to be established by the law.
1. By means of evidence of that description, a multitude of facts, of which, on different accounts, men are concerned to be informed, and, in particular, facts of the legally operative class, are preserved from oblivion and concealment:—facts of which the remembrance would not otherwise be preserved.
2. The statements or narrations of which the matter of this official body of evidence is composed, present, under certain conditions, in virtue of the situation from which they issue, or into which they have been received, a degree of trustworthiness—a title to credence—beyond what could reasonably be looked for on the part of so many statements or narrations to the same effect, if issuing from so many individuals taken at large.
More evidence, and that better:—such, in five words, are the advantages or uses derived from official situations, considered, in the most general point of view, in the character of sources or repositories of evidence.
Contemplating now in a nearer point of view the uses derivable from preappointed evidence of this description, we shall find one and the same article or mass of evidence useful in that character to different persons, in as many different ways.
In the carrying on of the various operations included in the aggregate term government, it will frequently happen that the knowledge of the same event or state of things shall be necessary to different functionaries, acting in so many different departments of government. Thus it is that the same article or mass of official evidence is applicable to divers uses, correspondent to the different departments to the business of which the knowledge of the fact evidenced by it is subservient.
Take, then, any government office whatsoever: the written evidence of which that office is the repository, and even the testimonial evidence of which it may eventually be the source,—that is, each or any article, or competent mass of it,—will be found susceptible of a variety of appropriate uses, some direct and constant, others collateral, and, comparatively speaking, indirect.
By the term direct uses, may be understood such uses and purposes to which the receipt and conservation of the evidence in question cannot but have been directed: the knowledge of the facts thus evidenced being necessary to the due performance of the operations, for the performance of which the office in question was instituted and established.
What follows concerns the collateral uses, to which it may happen to one and the same article of evidence—official evidence—to be applicable.
Suppose, on the occasion of a suit (non-penal or penal) instituted, or in a way to be instituted, between any two or more parties, this or that matter of fact requiring to be proved or disproved, whether in the character of a principal fact, or in that of an evidentiary fact. Evidence of this fact is afforded by the books kept in and for the purposes of the office; or by the testimony of some person to whose knowledge, in virtue of the situation occupied by him in that office, the fact in question happened to present itself. Here we have one sort of collateral use derivable from the body of preappointed evidence, of which the particular office in question is the repository or the source.
The sort of collateral use thus capable of being derived from any article of official evidence, may be termed its judicial use.
The books of the English office (for example) called the Navy Office or Navy Board, have for their direct object the recordation of such facts to which it may happen to require to be present to the mind of this or that official person employed in giving existence and direction to that part of the national force, in all its several shapes, which has the sea for its field of action. But, in the discharge of this function, it has happened to the persons under whose charge some of the books belonging to that office have been placed, to make entry of the deaths of persons of certain descriptions, who, while living, entered into the composition of that force.
Again; in official situations, as in all other situations, men are liable to misconduct themselves. Suppose in any such office—in a word, in any office whatsoever—an act of transgression committed, or supposed to be committed, by any officer belonging to it;—on the question, whether the act in question has been committed by the official person in question; or on the question, whether such act, if committed, is an act of transgression; recourse is had to the evidence furnished by the books kept, or papers received and preserved, for the purpose of the direct business of the office. Evidence thus applied, having evidently a double use, presents itself under a sort of mixed character. If the transgression, or supposed misconduct, is such as, for the prevention of it in future, and for the rendering due satisfaction for the past, requires not the interference of any public functionary other than the chief of the department to which the office in question belongs,—the use then made of it may be considered as coming under the description of the direct use: and the functionary to whom it is of use, and to the discharge of whose functions it is subservient, is no other than the administrator—i.e. the chief of the department for the use of which the article in question has been produced, or received and preserved.*
In this same case, suppose the gravity of the transgression, in the eyes of those to whom if belongs to pronounce, to be such as to call for a prosecution—non-penal, for the mere recovery of the money so diverted into an improper channel—or penal, for the punishment of him by whose transgression it was thus diverted:—the evidence, which before was evidence for the use of the administrator only, is now become evidence for the use of the judge.
Suppose that, in consideration of some such instances of transgression already committed (as above supposed,) or in contemplation of any such instances of transgression as being liable to happen for want of proper checks and safeguards, it occurs to the legislator to call for the production of the books of the department in question, in the view of observing upon what principle, and in what mode, the operations of that department are carried on and recorded:—here, in the person of the legislator, we have another functionary—the legislator, to whose use, in such his character, the same article or mass of evidence may happen to be found subservient.
The sort of collateral use thus capable of being derived from any article of official evidence, may be termed the statistic use.†
Sources of trustworthiness and untrustworthiness in the case of official evidence.
In point of trustworthiness, whatever superiority can be possessed by officia, evidence considered as such, presents itself as standing upon one or other of two distinguishable foundations:—
1. Pre-eminent responsibility: a degree of responsibility beyond what is to be found in the situation of the majority of the members of the community taken at large. In proportion to the value of the office—of whatsoever elements that value may be composed—emolument, power, and dignity (the efficient cause of the respect habitually paid to the possessor of the office, as such, by the community at large;)—in proportion to the magnitude of that value, in all those shapes taken together, the man in office has so much more to lose (i. e. that he is capable of losing) than the man not in office: so much, by the loss of which he is capable of being subjected to a species and quantity of punishment, to which an individual at large cannot be subjected.
2. Presumable impartiality:—of the situation in which a man is placed by the possession of the office, the effect (it is supposed) being such as to place him out of the reach of those self-regarding and other interests, to the sinister influence of which, the testimony of an individual taken at large stands exposed.
Of responsibility, in the sense above explained, the influence, in the character of an efficient cause of, or security for, trustworthiness in testimony, and in particular in case of official testimony, seems out of dispute.
But, from the efficiency of that influence in the character in question, the same situation affords drawbacks, and those of no mean account, the neglect of which would be productive of much error in practice.
1. Employed in the sense above explained, responsibility—the term responsibility—may be said to be understood in its beneficial sense: in the sense in which, so far as it has place, its operation is purely beneficial to the individual in whom the quality of responsibility is considered as inhering. But in this sense responsibility on the part of any person is no otherwise contributory to the trustworthiness of his testimony, than in as far as he is also responsible in what may be termed its burthensome sense: a sense extremely different from the other, though so habitually confounded with it under the same appellative. It is only in so far as in case of transgression he is liable to lose—actually liable, and eventually subject, to the burthen of loss, or to the bearing of a burthen in some other shape,—that a man’s having more, by the loss of which, if lost, he would be a sufferer, affords any reason for regarding his testimony as superior in point of trustworthiness to that of one who has not so much to lose.
In point of magnitude (i. e. possible magnitude,) the value of the eventual suffering, of which the responsibility and consequent security is composed, is increased: but, in point of probability, it may be diminished.
The existence of responsibility in this its burthensome sense being a causa sine quâ non to the efficiency and utility of its influence, in the respect in question, in its beneficial sense,—the causes by which a deficiency of it in its burthensome sense is liable to be produced, present a claim to notice.
1. Superior and unamenable power. If, in the case of incorrectness or prejudicial incompleteness on the part of his testimony, the situation of the official person in question be such as to place him out of the reach of punishment in any shape,—the security afforded by his responsibility, in the beneficial sense of the word, amounts to nothing. Instead of being less, he is more apt to transgress in this way, than an individual taken at large. Examples are too prominent to need mentioning.*
In this case, the beneficial influence of eventual punishment is done away, because, even supposing detection performed, and transgression manifest, punishment will not follow.
But, in a situation of the kind in question, whether the application of punishment in case of detection be or be not obstructed, detection itself is apt to be prevented or obstructed.
When the operation is thus exempt from danger, lies are a sort of article, which whosoever, having power, conceives it worth his while to bespeak, may command in any quantity, as well as (subject to the condition of security against detection, as above) of any quality, he can desire. Be the proposition what it will, so that in a competent proportion the matter of reward be attached to the act of signing it, it can never want for signatures. And, in such case, what is really the fact of which the signature affords the proof? Not that the subscriber really believes the supposed fact which by his signature he declares himself to believe; but that in some shape or other he has been paid, or expects to be paid, for writing it.
In this case,—so far as the responsibility, in the beneficial sense of the word, is the result of the emolument, power, or dignity attached to the office,—the higher the degree of the responsibility, the more completely is it destructive of the trustworthiness of the office, in regard to the statement or declaration thus made: since the more a man has to gain by falsehood (the force of the tutelary, the mendacity-restraining motives, being the same in both cases,) the more likely he is to commit it.
Take any given mass of absurdity, howsoever palpable:—a man who would not by his signature declare his belief in it for £14 a-year, would with great readiness do so for £14,000, were it only for the sake of the abundance of good which it would be in his power to do with it.
2. If, in the particular instance in question, in case of incorrectness or incompleteness on the part of the statement, the existence of such cause of deception be unknown—unknown to every one but him whose statement it is,—the influence of his situation, on the occasion in question, in the character of a cause of trustworthiness, may be set down as equal to 0.
In this case are all statements concerning any of those self-regarding psychological facts, in regard to which, in case of falsehood, the falsehood finds no physical fact so connected with it as to contradict and disprove it. Take, for example, a declaration of opinion or belief. No absurdity can imagination itself figure to itself greater than many a one in which many a man has declared his belief, and (so far as can be inferred from his actions) even with sincerity and truth. The absurdity of the fact, or rather of the proposition, not being capable of affording any conclusive evidence of the mendacity of the assertion whereby a man declares his belief of it; hence it is, that, so far as the absurdity of the prejudice is a proof of the falsity of the proposition whereby a belief in it is asserted, there is no proposition so absurd, no proposition so palpably false, in which—in office as well as out of office—in the highest, and in the beneficial sense the most responsible offices, as well as in the lowest and least responsible ones—the legislator may not make sure of causing belief to be declared, by any number of persons from whom the extraction of declarations of this sort is regarded by him as conductive to the ends which he has in view.
The words by which the declaration itself is expressed—and, moreover, the fact that it is by the individual in question that such declaration has been made—may be in any degree notorious, known to every member of the community without exception; yet still the abstruseness of the subject, howsoever produced, whether by the nature of the subject or by human artifice, may, in case of falsity, afford such a degree of security against detection, and thence against responsibility in the burthensome sense, as shall be sufficient to do away in a great proportion, if not altogether, whatever degree of security for trustworthiness may stand attached to the office on the score of responsibility in the beneficial sense.
Scarce a day passes in which, in the ordinary course of business—that is, of the fee-gathering husbandry—an English judge, of the learned and superior class on which that official title is in a manner exclusively bestowed, does not, by his signature or by his connivance, give utterance and currency to falsehoods in abundance: but, except to those who are either in the habit or the expectation of deriving profit from the same source, either the fact of the falsity is unknown, or, in consequence of the deception that has been practised upon them, men have been taught to look upon such falsehood as being either necessary, or in some unknown way or other conducive, to the attainment of the ends of justice.
3. Aggregation of a number of colleagues in office in such manner as to constitute a body corporate, or board.
Superiority of power, and non-notoriety of the falsity of the statement made, or (what comes to the same thing) of the part taken by the official person in question in the making of such false statement, have already been mentioned as two circumstances, each of them having its separate operation in the character of a drawback on that degree of superordinary trustworthiness which has the official situation for its source or efficient cause.
By the junction made of the individual in question with others in a board, both these drawbacks are made to centre in the same person. To the power derived from his own situation, each member of the corporate body or board adds the power derived from the situation and connexions of his several colleagues. A board is thus a rampart of defence, behind which each of its members finds a place of security against all attacks of the nature of those of which responsibility in the burthensome sense is the result. Bandied to and fro amongst a number of individuals, on no one of whom it can fasten to the exclusion of the rest, the disrepute (whatever it be) which in the case in question, were it the case of a single individual, would attach itself to the falsity, remains in the present case in a state of suspense, not being able to find any one of them to fix upon. To each of the members which compose it, it is the nature of a board to serve as a screen from responsibility in the burthensome sense—a screen from whatever punishment or disrepute is, in the case in question, meant, or pretended to be meant, to be attributed to transgression: to transgression, as in other shapes at large, so in the shape of falsehood—the only shape in which it comes in question here.
By the want of responsibility in the burthensome sense, attached to the essence of a board, inferiority instead of superiority in point of trustworthiness may be attached, not only to such statements in the delivery of which the members of the board speak in the character of percipient witnesses, but to statements which, having been delivered in the like character by officers subject to the authority of the board, receive from the board an attestation of verity, express or virtual, in the way of discourse or in the way of deportment; viz. by being acted upon by the board as if believed to be true.
In any such subordinate situation, falsehood and misrepresentation may be produced by sinister interest, not only in a pecuinary shape, but in the shape of indolence or love of ease: and not only, as above, by a vicious state of the will, but by a weak or vicious state of the intellectual faculties: particularly where the business of the office is of such a nature, that the statements and representations made by such subordinates are such as come under the denomination of scientific evidence.
In political administration, a board, in contradistinction to individual management, is an invention which, throughout the sphere of its authority, has for its properties and effects the securing transgression against punishment, the depriving merit of its reward, the extinction of emulation and consequent exertion, the perpetuation of incapacity, indolence, and negligence—in a word, of misconduct in every shape imaginable: and this not so much on the part of the members of the board itself, which by the prominence of its situation engages in some measure the public eye, as on the part of the subordinate functionaries; whose functions, while they have little to attract the eye of the public, have much to repel it, and who are the less looked after by the public, in proportion as they are supposed to be well looked after by their superiors at the board.
The tendency of the sort of institution in question to produce misconduct in any other shape than that of falsehood and misrepresentation, belongs not to the present purpose. But, this chapter having among its objects the showing how to form a just estimate of the trustworthiness of official evidence, and how to render it more trustworthy than it has been found to be in practice, it became a necessary task to inquire by what causes its experienced deficiency in point of trustworthiness is produced: and among these causes, one of the most efficient was found to be, the artificial union thus effected among the highest stationed of the hands by which the business of office is performed; viz. in respect of the deficiency thence resulting in point of responsibility, taken in the burthensome sense.*
So much for the drawbacks from the superior trustworthiness supposed to be attached to official evidence on the ground of responsibility. Remains to be estimated the amount of the superior trustworthiness supposed to be attached to it on the ground of presumable impartiality.
Supposing the impartiality perfect, and the existence of this important though negative quality out of doubt, the trustworthiness of the evidence, in so far as depends upon the state of the moral faculties of him whose statement it exhibits, is beyond dispute.
In the case of official evidence, it is no uncommon case for the testimony, so far as depends upon impartiality, to be in this perfect state. In the case where the purpose to which the evidence is applied is a judicial purpose, be the office what it may, this impartiality may, it should seem, be stated as the natural state of things. In an official book an entry is supposed to have been made of the birth of the plaintiff, or the marriage or death of one under whom he claims. It can only be in consequence of same comparatively rare accident, if the keeper of the official book was, at the time in question, exposed to the influence of any interest by which he could have been so much as excited to suppress an entry to the effect in question—to insert an entry totally false—or, in the description given of the fact in question, to insert a circumstance known by him who inserts it to be false: and so in regard to an entry supposed to have been made in this or that book belonging to this or that judicial office; an entry, for example, of a judicial incidental order supposed to have been made, or final judgment supposed to have been pronounced. Impartiality is, in a case of this sort, the ordinary and probable state of the mind of the official narrating witness. Why? For this, amongst other reasons, viz. that, at the time at which the entry is or ought to be made, the application which eventually comes to be made of the evidence to the judicial purpose in question (whether it bears, when it does take place, any relation or not to his interest) cannot be so much as present to his mind.
But this quality, though a natural accompaniment of official evidence, is not a necessary one: and it would be a mischievous error, if, because in ninety-nine instances out of one hundred, the application of the securities for correctness and completeness is unnecessary, in the hundredth in which it is necessary it should, by any such general conception of superior trustworthiness, he prevented from being made.
In judging of the degree of credit due to the testimony of a witness taken at large, a question that can never cease to be relevant is. Had he any interest in misrepresenting the fact in any respect?—and, in judging of the degree of credit due to the statement of the official testimony expressed in writing or otherwise by one official person, the same question can never cease, in this particular case, to be as pertinent and proper as in the general case.
Among the uses above stated as derivable from official evidence, is the use adapted to that accidental and comparatively unfrequent, but never to be neglected, class of cases, in which, on the occasion of some transgression imputed to this or that official person belonging to the office, the same article of official evidence which in the ordinary state of things is of use only to the administrator (i. e. to some one or more of the officers belonging to the department in question, or other officers or individuals holding correspondence with it,) becomes evidence to, and to the use of, the judge. But in this class of cases, and it is not a narrow one, nothing can be more obvious or undeniable, than that, so far as depends upon presumable impartiality and nothing more, official evidence—the official evidence in question, so far from being a point of trustworthiness above the level, will stand below the level, of evidence taken at large.
Rules for estimating and securing trustworthiness in the case of official evidence.
Principles being laid down, a few observations, bringing to view (in principle at least) the arrangements that have presented themselves as conducive to the forming, in the case of official evidence, a just estimate of its trustworthiness, may perhaps be not without their use. And the same rules which serve for showing in what degree such evidence of that description as is found in existence is possessed of that desirable quality, will serve for indicating in some measure such arrangements as promise to be conducive to the giving of that same desirable quality to evidence of the like description as it may be destined to come into existence in future.
Rule 1. To form a just estimate of the trustworthiness of an article of official evidence, look out for the several causes of inferiority that are liable to have place in regard to evidence at large;—viz. 1. That which has place in the case of circumstantial evidence; the fact spoken to not the very fact in question, but a fact considered as evidentiary of it:—2. That which has place in the case of unoriginal evidence; where, between the information supposed to have been given by the percipient witness, and the ear or the eye of him to whom it belongs to judge, one or more media of transmission are supposed to have intervened:—3. That which has place in the case of free and uninterrogated statements, where the information in question, as above (whether any such media of transmission have intervened or no,) has been made without being subjected to the influence of interrogation, or eventual punishment, in the character of securities for correctness and completeness:—4. That which, on the part of a witness of any description (viz. extrajudicially percipient and narrating, extrajudicially reporting, or judicially reporting and deposing witness,) has place in the case of diminished trustworthiness; howsoever the diminution be produced—viz. whether by inferiority in point of intellectual aptitude, by exposure to the action of interest acting in a sinister direction, or by improbity of disposition, considered as rendering his effectual resistance to that sinister force by so much the less probable.
The fact in question, the fact spoken to by the official document, or the statement made by the official person,—is it of the number of those facts by which, according as they are credited or not—according to the opinions entertained concerning them—his own reputation, or that of any other person specially connected with him by any tie of self-regarding interest or sympathy, may, either in a favourable or an unfavourable way, be affected? Is it, for example, an act of his own, or any matter of fact or supposed fact, on the belief or disbelief of which his own act was grounded, or on which the propriety or impropriety of his own conduct may be found to depend? If yes, there is an end of that ground of trustworthiness which is composed of impartiality: exemption from the action of sinister interest.
Rule 2. For a judicial purpose, in the case where, for the purpose of the official business, the evidence in question, having been already committed to writing, exists in the shape of ready-written evidence,—in that same shape, though unsanctioned and uninterrogated, it may in general be presented to the cognizance of the judge, viz. for avoidance of delay, vexation, and expense, notwithstanding the imperfection and comparative untrustworthiness incident to it in that shape.
Rule 3. But if, on any of the grounds mentioned as above, the trustworthiness of it be regarded as diminished, all such operations ought to be allowed to be performed, as, supposing the information to have issued from any ordinary and non-official source, would be regarded as necessary to place the trustworthiness of it (viz. its correctness and completeness) upon the strongest and surest ground: to wit, by tracing out direct evidence of the fact in question through the medium of the circumstantial, or by tracing out percipient witnesses through the medium of judicially or extra-judicially reporting witnesses, and by applying to the testimony of the respective witnesses the ordinary securities for trustworthiness, viz. interrogation, publicity, denunciation of eventual punishment, &c. as the case may be.
Rule 4. Note, that, without any imputation upon the trustworthiness of the witness (the author or reporter of the narrative or statement exhibited by the article of official evidence,) the application of the process of interrogation may, to the purposes of correctness and completeness taken together, but more particularly completeness, be indispensable. For a mass of testimony, though correct and sincere, may to one purpose be complete, to another incomplete: incomplete, and not capable of being rendered complete by any other means than an interrogatory or series of interrogatories adapted to the individual purpose actually in hand.
A distinction requires here to be noted, between the information sought, and the document in and by which it is supposed to be contained and presented. To either of these objects, where an office of this or that description is the source or repository of the information sought or the document consulted, the term official evidence may without impropriety be applied. But a case that may very easily happen is, that—where the matter of the document is more or less false, and would (if trusted to) be deceptitious—true and useful information, information such as to the purpose in question shall be complete, and in every part correct, shall be obtainable and obtained by means of it, viz. by a due and skilful application of the instruments for the extraction of truth—the instruments already mentioned. But, to the ends of justice, the material object is, that the information obtained shall be complete and correct. Whether the document by means of which it was obtained, was or was not possessed of those same qualities, is to this purpose a matter of indifference.
Were this distinction to pass unobserved, official evidence from this source might be in a high degree over-valued or under-valued; and from either error, much practical mischief to justice might be the result. The official documents of which this or that particular office is the repository or the source—i. e. the information already contained and presented by them—is very apt to be false: but if the conclusion were to be, Receive not, credit not, any information that comes through that office, and this conclusion were acted upon, here would be a great mass of light extinguished—of light indispensably necessary to the purposes of justice. From the office in question, true and instructive evidence might, by a suitable application of the instruments for the extraction of truth, at any time, and for any of a variety of purposes, be obtained: but if the conclusion were to be, Receive as true whatever information may be presented by any of the documents of which that office is the repository, and this conclusion acted upon, an habitual course of error, deception, and injustice, would here again be the result.
Rule 5. The same rules, which, in the several cases individually taken, serve for estimating the trustworthiness of an article or mass of evidence—in the present instance, a mass of official evidence—will serve for securing the possession of this desirable property to the whole mass of official evidence taken in the aggregate. The instruments of security in question adapted to the purpose, are—1. The arrangements and operations so often mentioned under the name of securities for trustworthiness; 2. The application of these securities to the purpose of investigatorial procedure: tracing out, in relation to each article of information, the percipient witness (if any such there were) through the medium of the reporting witness or witnesses. In each individual case, to employ these instruments in so far as requisite, or permit them to be employed in so far as requisite, is the function of the judge; and it is by performing it that he enables himself to estimate the trustworthiness of the evidence, and the verity of the facts probabilized by it. To allow or prescribe, as the case may be, the employment of these same instruments in future, is the function of the legislator: and it is by performing it that he does what depends upon him towards securing this desirable result in all future instances.
Of the several purposes, as above distinguished, to which it may happen to official evidence to be found applicable,—the collateral and incidental, the judicial, is the only one that, in the observations just delivered, has hitherto been in view. But if, when applied to that purpose, any of them be found applicable with advantage, they will scarcely be found applicable with less advantage to the direct purpose of the several masses of official evidence, of which the several offices are respectively the repositories or the sources. If, in any such office, in the instance of this or that species of document, the matter be regularly replete with falsehood, arrangements and operations have above been pointed out, by means of which that falsehood may, on any occasion, be converted into a source of useful truth.
Here, then, are two other functionaries—the administrator and the legislator, to whom the above suggestions (if useful to the judge) may also be of use: to the administrator (i. e. to that branch of the executive authority to whom, under the legislator, the conduct of the business in each several office depends,) that he may take such measures as lie within his competence for the substitution of true documents to false ones: to the legislator, that, in default of his subordinance the administrator, he may apply his own superordinate authority to the same salutary purpose.
OF OFFICIAL EVIDENCE, AS FURNISHED BY JUDICIAL OFFICES.
Uses of the official evidence furnished by judicial offices.
Applying to all offices without exception, the matter of the last preceding chapter will be found to apply with no less propriety or advantage to judicial offices in particular. But, in that mass of evidence of which an office of the judicial kind is either the source, or the receptacle and repository, circumstances may be observed, by which, considered as the basis of judicial decision, official evidence will be seen to stand in the scale of importance upon a higher level than official evidence taken at large.
In the character of evidence to the judge, the application of official evidence taken at large is but collateral and incidental. The application of the evidence furnished by a judicial office is direct and constant: and this as well in the instance of that part of the mass of which the office (in this case the judicial office) is but the repository, as in the instance of that of which it is the source.
The information, which, under the denomination of evidence, is received or extracted by the judge, belongs not to this head: the character in which it comes under consideration is that of ordinary, not preappointed, evidence.
In respect of evidence of this description, the office is the receptacle, and, in so far as such is the usage of the office, the repository, but is not the source.
Of the evidence furnished, or capable of being furnished, by the judicial office, that which comes under the notion and denomination of preappointed evidence, is that by which the operations performed by the several dramatis personæ in the theatre of judicature, are, or may be, brought to view, and consigned to remembrance.
Among the operations in question, the principal class consists in the delivery of the various ready-written instruments which in the course of the cause come to be delivered; and where the delivery of an instrument to a certain effect is performed and commemorated, a natural course is, that the instrument itself, or a transcript of it, be preserved.
Instruments, in so far as received into the office, and kept there, record themselves: operations, if the remembrance of them is to be preserved in the office, require an official hand to record them. The instrument will show its own existence, but will not show of itself the performance of any operation performed in relation to it; for example, the time when, or the persons by whom, it was delivered or received.
The different uses to which it may happen to the same lot or article of judicial official evidence (i. e. of preappointed official evidence, having for its source an office of the judicial kind) to be applicable,—these different uses, as characterized by the different descriptions of persons by whom the use may be made—the service, the benefit, received—may be thus distinguished:—
1. Uses to the parties or their representatives; viz. in respect of their respective interests in the suit supposed to be in hand, the suit which gave occasion to the reception or recordation of the article of evidence in question,—or, if an instrument, the framing of it in the office, or the reception of it from without,—if an operation, the recordation of it. Here the judicial uses coincide with those which, in the case of an office other than judicial, have been designated under the denomination of the administrative uses.
2. Uses which respect the interests of the same or other parties in respect of future contingent suits, in which, if instituted, the evidence in question may eventually be found applicable.*
3. Uses to the sovereign and legislator: consisting in the furnishing such information as may serve as a basis for any such ulterior regulations as from time to time may serve to render the proceedings of the several judicatories, as well as the several portions of substantive law to which it is their duty to give execution and effect, more and more effectually subservient to the several ends of justice: these may be distinguished by the term statistic uses.
I. Uses to the parties in respect of the suit in hand:—
Each operation requires to be consigned to remembrance for three purposes—1. That it may serve as a basis for the next operation which it may render necessary or advisable to be performed, whether on the same side of the cause or on the opposite side;* 2. That it may be seen whether the operation thus performed was proper in itself, and performed in a proper manner; 3. That, in case of any impropriety, it may serve as a ground for satisfaction to be render for any such wrong as may have been produced by the impropriety—satisfaction, or even punishment, if the wrong be of such nature as to create a proper demand for punishment.
Under a system of which justice is the object, the operation which, in the ordinary course of things, will naturally come to be registered at or near the outset of the cause, will be the appearance of both the parties in the face of each other and the judge: the next, saving such memoranda as it may have occurred to the legislator to prescribe to be made and preserved for his own use (of which presently,) will be either the decision pronounced by the judge, or the existence of some circumstance which, creating a natural and just demand for delay, would have rendered such immediate decision repugnant to one or other of the direct ends of justice.
Under a system of which the object is injustice, in the shape of factitious delay, vexation, and expense, for the sake of the profit extracted to the use of Judge and Co. out of the expense,—the operations that come to be registered will be those needless and useless operations which serve as pretences for enhancement of the expense, or for the creation of that delay and vexation, the faculty of inflicting which, with the chance of consequent misdecision, constitutes the encouragement afforded to the malâ fide litigant on either side to drag along with himself his injured adversary through the kennel of litigation: and of these there is no end.
II. Uses to future contingent parties, in respect of future contingent causes:—
In regard to contingencies of this description, the desirable effect (the door to the temple of justice not being shut by factitious delay, vexation, and expense, or exclusion of instructive evidence,) the best possible effect is, that they come not into existence: the next most desirable effect is, that, coming into existence, they receive a decision as conformable as possible to the direct ends of justice, and at the same time as clear as possible from collateral inconvenience in the shape of delay, vexation, or expense.
To these purposes taken together, the knowledge of the following facts, of the number of those which have actually had place on the occasion of the several causes already instituted, is manifestly subservient:
1. Knowledge of the several facts, ignorance of which, or misconception or uncertainty in regard to them, may, on one side or other, give birth to ulterior suits either between the same parties or between other parties: for instance, that Titius, by his last will, declared it to be his desire, that, upon and after his decease, Sempronius should be proprietor of the field therein described.
2. Application that has been made of the law (viz. by a decision pronounced on the occasion of the past cause) to the fact or facts that were deemed established by sufficient proof on the occasion of that same suit: for instance, that the desire so expressed by Titius was by a judicatory adjudged to be valid, and conformable to law.
III. Uses that bear reference to the legislator, as the functionary by whom the application of the information thus obtained comes to be made,—bear reference to the several ends of justice so often spoken of as the objects to which the operations grounded on such information should be directed:—
If the system of judicial procedure has been already framed by him and established by law, his direct object in the collection of the information under this head will be to see in what particulars it is subservient in the utmost possible degree to the ends of justice, and in what particulars (if in any) it fails of being so: to the end that, in so far as it fails of being so, the failure may be obviated.
If the system of procedure has, in the whole or in any part, been the work not of himself but of the judge, acting according to rules expressed in terminis, or not so expressed; then, over and above the correction of any such failures as may in this way present themselves to view in the system thus established by an improper hand, is the giving it its establishment by his own the only proper hand—giving, in determinate words of his own choosing, expression to those rules, where as yet they had none; where it has already received such expression, and that an expression conformable to his views, giving to it the sanction of his authority in express words.
Under a great variety of subordinate heads, information—useful information, may, by the skill and probity of the legislator, be drawn from this source. But, in each instance, its title to the reputation of utility will depend upon its subservience to some one or more of the ends of justice. Hence, under whatever such head information is sought, the propriety of seeking it will find its test and demonstration in the designation of that one or more of those ends to which it is subservient; and, if not sufficiently obvious, of the means by which—the way in which, its tendency to such subservience manifests itself.
To give a complete list of the several heads of information thus capable of being made subservient to the ends of justice, would be a difficult, and in the present work a misplaced, task. For illustration, the following examples may serve, arranged under those ends of justice to which they may respectively be found subservient:—
I. Prevention of misdecision to the prejudice of either side of the cause.
1. Total number of causes in which the decision turned on the question of fact.
2. With this total, to compare the number of the causes in which evidence of an inferior quality was received, distinguishing between the several causes of inferiority: noting whether the inferior evidence was or was not the only evidence on that side; and whether the decision was in favour or disfavour of the side on which the inferior evidence was produced.
The number of causes individually taken, in which (choosing any given period) the decision was in favour of the inferior evidence, will show the utmost possible amount of the mischief resulting, within that period, from the admission of such inferior evidence.
Comparing period with period, say year with year,—if the number of such cases, individually taken, were constantly upon the increase, it would afford a ground for suspecting, that, by the admission of such inferior evidence, wilful falsehood, deception, misdecision, and thence encouragement to injustice, on the part of individuals, had been produced. Supposing no such increase, or none but what might be satisfactorily accounted for by accident or other causes; it would then be made manifest, that by such admission no such evil consequences had been produced.
3. Number of the appeals from decisions grounded on the question of fact: distinguishing between the cases in which the decision of the subordinate judicatory was, by the superordinate, affirmed purely and simply, and those in which it was either reversed or modified; and—in case of divers appeals grounded on the same original decision, and presented to different judicatories, taking cognizance one after another of the same fact—showing the number of such successive appeals.
If, in each instance, the evidence be exactly the same, and presented in the same shape; then, upon the supposition of consummate wisdom and probity on the part of the judicatory ultimately resorted to in each case, together with sufficient ability in each instance, on the part of the losing side, to carry the cause before an ulterior judicatory,—all these assumptions being made, the proportion between affirmed and reversed or modified, would exhibit the degree of aptitude, in all shapes taken together, on the part of the respective subordinate judicatories.
II. Prevention of preponderant or superfluous delay, vexation, and expense. Showing, in and for each suit, the quantity of delay, vexation, and expense, on both sides of the cause; distinguishing, in the case of each of those three modifications of collateral inconvenience, the portion which was natural and unavoidable, from the portion, if any, which was fictitious and avoidable: and, in regard to that fictitious part, distinguishing between the several portions which were respectively the work and the fault of the system (the established system of procedure,) the party or parties, or the judge. And—in case of different judicatories, to the cognizance of either or any of which the same individual cause might, at the option of a party, on the one or the other side of the cause, have been presented, whether acting under the same or a different system of procedure—serving to show, in respect of the quantity of delay, vexation, and expense in each, the difference between judicatory and judicatory: and thence, in these several shapes, the quantity of factitious injustice, which, in the instance of those judicatories in which it has been greatest, presents itself as chargeable either on the system or on the judge.
III. Prevention of contraventions against the remote ends of justice. Showing for each period, on the part of the several judicatories, the number of contraventions, if any, against the unimmediate or remote ends of justice; viz. 1. Against obedience to the several manifestations of the will of the legislator—judicial non-conformity at large, and judicial disobedience manifesting itself in the particular shape of usurpation of jurisdiction, to the prejudice of the authority of other judicatories (whether superordinate, co-ordinate, or subordinate to the judicatory so usurping;) 2. Against uniformity of decision as between judicatory and judicatory—mutual discrepancy of decision.
IV. Prevention of judicial injustice in all shapes together. Showing, for each period, the number of causes of the several species, non-penal and penal: and therein and thence, the aggregate amount of the delay, vexation, and expense actually produced; together with the utmost possible number of the instances of misdecision, which, to the prejudice of either side, can have been produced: showing thereby, as between period and period, the increase or decrease of injustice and delinquency in its several shapes, with a view to the demand, if any, for ulterior exertions in the line of legislation.
V. Melioration of the law, whether in respect of matter, or form: i. e. showing the demand for fresh law, or fresh expression to be given to this or that portion of already existing law.
The ways in which recordation might be made subservient to this purpose are—
1. Exhibiting the several cases in which a question of law (grounded in this case on statute law) had any place in the dispute between the parties; and in each instance showing the point or points in dispute, reference being made to the several portions of law relied upon on each side, together with the considerations brought forward in the way of argument on all sides.
2. In cases of appeal, exhibiting the ground of the appeal, and the number of stages of appeal, if more than one, in the instance of each cause; and, on each occasion, the treatment given, whether in the way of affirmance, reversal, or modification, by the superordinate judicatory, to the decision of the subordinate.
From the point or points in dispute, compared with the words of the portion of law which formed the ground of the dispute, it would be in each case apparent whether any demand had presented itself for fresh law (viz. law fresh in substance,) or only for fresh expression to be given (viz. for removal of ambiguity or obscurity) to this or that portion of existing law: the melioration being in each case to be made by defalcation, addition, substitution, or transposition, as the nature of the exigence requires.
In so far as, by incapacity, indolence, negligence, or corruption, on the part of the legislator of the day, the rule of action is left in the barbarous state of the species of imposition called unwritten law,—the people, in their character of suitors, being (such of them as are honest) habitually, for the benefit of that partnership of which the judge is at the head, and of which the legislator is the accomplice or the dupe, punished for non-conformity to rules which, lest they should be conformed to, are not permitted to be known;—in such case, the number and place of such appeals will, to the legislator of some happier time, afford useful indications, pointing out to him the particular portions of the field of law, in and by which the demand for real and genuine law has thus rendered itself manifest.
The demand for a really existing and accessible standard of obedience, co-extensive with the whole field of law, can be no secret to any one who on this head will permit himself to listen to the most obvious dictates of common sense. The light reflected on this subject by recordation, consists in nothing more than a distinct indication of the particular instances in which this undeniable truth will thus have been brought to view.
There remain two masses of injustice, the quantity or limits of which cannot be shown for any period, in a direct way, by any such documents as the above;—viz. 1. The number of instances in which, in the shape of oppression or extortion, injustice has been produced by an opulent individual in the character of plaintiff; to the prejudice of one who should have been defendant, but was debarred by the load of vexation and expense from the faculty of defending himself. 2. The number of instances in which injustice was committed, and with success, for want of litigation; the wrong-doer trusting to the inability of the party wronged to take upon himself the character of plaintiff with effect.
In a direct way, and in the several particular instances in which injustice thus produced has taken effect, no particular documents can show its amount: but a conception of the aggregate mass may be deduced from the computation of the quantity of money necessary to defray the expense of a suit on both sides, compared with the quantity which it is possible for a father of a family, in the condition of the most numerous class, to have at command for this purpose.
Neglect of English judges and legislators in regard to this kind of preappointed evidence.
If such as stand above exhibited are indeed the duties of the legislator and the judge,—negligent in the extreme—culpable, and at the same time cruel in the extreme, on this important ground, has been the conduct of English judges and legislators. Were an inquiring mind to turn its eye on this occasion to Westminster Hall, what would it see? A correct, a clear, an all-comprehensive, an easily and cheaply accessible, body of evidence, adapted to the exigencies of all suitors, in all sorts of causes? Alas, no! but instead of it, a parcel of disjointed fragments, composing an imperfect and confused and shapeless mass, stained throughout with mendacity, and drowned in nonsense. What, then, has been the conduct of these high-seated possessors of delegated power? Like savages waiting for a wreck, or rather like insurers making secret preparations for the manufacturing of a wreck, instead of making provision by their own industry for the requisite supply of evidence for their own use, they have lain by, and punished suitors for the deficiency—punished them for the not having produced that precise sort or individual lot of evidence, which, to the exclusion of whatever was attainable, they were, by an unpromulgated resolution of their own, predetermined (or rather, in the way of an ex post facto law, such as are all decisions of common law in new cases, these ministers of justice were post-determined) not to accept. They leave undone the things they ought to have done; and from this negative trespass it is, that they derive the faculty of doing those things which they ought not to have done—of denying justice, of working injustice, of producing delay, vexation, and expense. If, in the mouths of such exalted and privileged sinners, the established and commanded confession had any useful meaning, how copious might it not be when pointed to this quarter of the official decalogue!
Confounding everything that requires to be distinguished, the nomenclature of English jurisprudence includes under the same general name (records,) and without any names of specific distinction under it, instruments exhibiting judicial transactions, and instruments exhibiting public official contracts, public contractual writings of the more important kinds, king’s grants (conveyances in which the king is grantor,) &c.
Distinguishing, on the other hand, by an arbitrary and shifting line, two classes of objects between which there is neither any natural, nor so much as any promulgated or perceptibly instituted difference,—it has divided courts into courts of record, and courts not of record. And what are the courts not of record? Any inferior courts, on the proceedings of which, the two superior purely law courts at Westminister Hall bestow but an inferior degree of credit. And, among those inferior courts, which stands first upon the list? The Court of Chancery, of which the daily functions are to impede and overrule the decisions of them both.*
The Court of Chancery not a court of record? Why so, any more than the two great common-law courts under the same roof—the King’s Bench, and Common Pleas? Is it that it keeps no records, or that its records are framed or kept with less care? Let him answer, who has occasion and power to know. One thing I will venture to say: that, in the memorials of the instruments and acts ascribed to the court, or to any member of it, of whatsover class, there is at any rate less mendacity and nonsense in the court that proceeds upon the Roman model, the court not of record, than in the courts which proceed upon the Anglo-Gallo-Norman model, the courts of record.
On this head, the efforntery and imposture of English judges, and of one in particular, who is in possession of serving as an oracle to the rest,† presents a lesson which will not be deemed undeserving of regard, unless where the bosom is by sinister interest fortified against it.
Geometrical propositions he had heard spoken of, as composing a class of propositions to which men’s assent was wont to be engaged by arguments or evidences universally regarded as irresistible, and on the truth of which, without danger of error, the most confident reliance might be placed. Under the name of diagrams, he had heard spoken of a species of figures or graphical representations, employed for the expression of those propositions, and of the arguments from which the verity of them is inferred.
From the first month of his application to the study of the English laws, what from first to last is known to every man who applies himself to the study of that most corrupt of all systems of law, must have been known to this oracle of English law; viz. that, of the sort of instrument or document called by English lawyers a record, so far as concerns the judicial class of records, a considerable part is in every instance a tissue of falsehood—unworthy of all credit, in fact not meant to be believed, and which would therefore be as innoxious as it is absurd, were it not for the obscurity and ambiguity, uncertainty, deception, and misdecision, which is the result of the entanglement in which truth and falsehood together have so studiously and effectually been involved. What could not have been unknown to this projector, and in part executor, of a complete abridgment of English law, was, that the falsehoods contained in those pretended repositories of truth had from first to last been habitually applied, as they continue to be applied, to the purposes of depredation for the profit of the judges.
But the more abundant and mischievous and profitable the falsehood was—mischievous to the people, profitable to the authors and their confederates—the more urgent the need of straining every nerve, of heaping falsehood upon falsehood, for the purpose of rendering incurable the blindness of the people, and causing them to venerate this tissue of pernicious falsehood, as if it were a body of pure and spotless truth.
Accordingly, at the outset of his treatise on evidence, these repositories of notorious falsehoods are without limitation spoken of under the rhetorical and sophistical denomination of diagrams (diagrams for the demonstration of right,) and as composing a species of evidence, in comparison with which all other evidence is weak and unsatisfactory—a species of evidence possessing the attributes of certainty and infallibility,—those attributes which in truth are radically incapable of entering into anything that ever went by the name of evidence.
OF PREAPPOINTED EVIDENCE, CONSIDERED AS APPLIED TO LEGALLY-OPERATIVE FACTS AT LARGE.
Use of registration, as applied to legally-operative facts.
By the denomination thus assigned, the facts in question are distinguished from all others, and at the same time the reason why they ought to be had in remembrance, and placed upon the rank of preappointed evidence, is brought to view.
If, in the instance of any given right or obligation undertaken by law to be established, it be necessary to justice and the general welfare of the community that it be established and carried into effect,—it will be equally necessary that the existence of that evidence, without which such effect cannot take place, should be secured. But, even although in any such instance the effectuation or frustration of such right or obligation were in itself a matter of indifference, still the existence of preappointed evidence, of a nature to secure the effectuation of such right or obligation, would not be matter of indifference: for, of such evidence, when by means of it the fact evidenced by it is known to have had place, the effect is to prevent litigation, by rendering it on one side hopeless: while, of the want of such evidence, a natural and frequent effect is, the rendering it matter of doubt whether the fact had place or no; of which doubt, litigation, with the vexation and expense attending it on both sides, and the disappointment on one or both sides, is the bitter fruit.
But, in many instances, such registration, howsoever desirable, will be found unattainable: and in particular, in every instance in which the effect of such registration would (whether on a non-penal or on a penal account) he unfavourable to the only individual or individuals from whom the information of the fact could for that purpose be obtained.
Moreover, in many instances, such registration, though of itself desirable, might be upon the whole prudentially or even physically impracticable: physically, because there exists no person by whom the process of recordation could be performed; prudentially, because, it any person exist by whom it could by possibility be performed, there exists no person by whom it could be performed in a proper manner—i. e. in such manner as to render it more likely to be preventive than promotive of consequent misdecision, and at the same time without being productive of preponderant collateral inconvenience in the shape of vexation and expense.
The cases in which, as above, such recordation is impracticable (physically impracticable,) require to be noted, were it only for the purpose of bringing to view the limits opposed by necessity to the exertions of legislative providence in this line: to the end that the legislator may not be subjected to the imputation of negligence, for not aiming to overleap the boundaries of possibility; and at the same time, that he may not seek, in the impossibility of making provision to this effect in some instances, an excuse for omitting it in cases to which the natural and inseparable bar does not extend itself.
From what is above stated, five rules present themselves as proper on the part of the legislator to be kept in remembrance:—
1. To look out for such different descriptions of legally-operative facts as may be found susceptible of recordation,—viz. without preponderant inconvenience, as above.
2. To look out for such persons as, being fit in point of qualifications (intellectual as well as moral,) may, on each respective occasion, either be found, or without preponderant inconvenience rendered, in each case, willing to undertake the charge.
3. On each occasion, to make provision such as the case admits of for the verity, for the correctness and completeness, of the statement so recorded.
4. To consider with himself and determine what legal effect shall be given to the preappointed evidence thus collected and preserved.
5. To make due provision for adapting to his own use, in every practicable shape, the information which has for its more immediate object the giving effect to the rights established for the benefit of the particular individuals, on each respective occasion particularly considered: in a word, to apply it in the aggregate to the statistic uses of which it is susceptible.
Facts calling for registration, what?
I. Facts of a regularly occurring nature;—viz. such as—though, individually taken, not—yet, taken in specie, their recurrence may be considered as certain.
1. Facts affecting condition in life. Take for example, the articles of principal importance, which appear as follows—1. Deaths; 2. Births; 3. Marriages:* to which may be added, though comparatively casual—4. Arrivals at majority; 5. Declarations of insanity; 6. Declarations of dissolution of marriage, otherwise than by death; 7. Entrance into contracts of apprenticeship; 8. Dissolution of such contracts, otherwise than by expiration of the term; 9. Entrance into partnership contracts; 10. Dissolution of partnership contracts; 11. Appointments to official situations; 12. Removals from official situations.
2. Facts collative and ablative with relation to contracts taken in the largest sense: including the making of wills, and other conveyances.
1. Entrance into any contracts other than the above.†
2. Dissolutions or modifications of contracts: in the several ways, by which the several sorts of contracts, according to their respective natures, are capable of being dissolved or modified,—such as expiration, performance, receipt of money, &c.
In regard to entrances into contracts, and dissolutions of contracts,—whether it be eligible upon the whole that registration should take place, will depend upon the joint consideration of the importance of the contract,—the probability of non-notoriety when notoriety is requisite, and of oblivion when remembrance is requisite,—and the vexation and expense attached to the operation of recordation; taking into the account of vexation, whatsoever unpleasant circumstances may be the result of disclosure. See above, Ch. II. On Contracts.
II. Facts of casual occurrence: casualties, taken in the largest sense.
1. Deaths;—viz. when by means of marks of violence or other extraordinary appearances, a suspicion is afforded that human agency (positive or negative) may have been contributory to the effect.
2. State and condition of persons or things, in consequence of deterioration supposed to be the result of delinquency:‡ together with any other circumstances, the remembrance of which may, for want of speedy recordation, stand exposed to deperition.
3. So, where supposed to be the result of physical calamity,—in so far as, in consequence of such result, fresh rights and obligations, at the charge of this or that individual, may come into existence. Thus, by the calamity of fire, a right may accrue to the proprietor of a house, attended with a correspondent obligation at the charge of an occupier or an insurance office.
4. To the list of facts of casual occurrence may be added (in the character of facts the recordation of which, in the same mode and by the same hands, may be subservient to the purposes of justice) any facts so circumstanced, that the means of presenting them to the cognizance of the judge may be wanting, unless the testimony of such persons as (from the having stood in relation to them in the character of percipient witnesses) are competent to speak to them in the character of deposing witnesses, be collected at a time in which the collection of it in the ordinary and regular mode is impracticable: the percipient witness, for example, on the point of leaving the country, and the stopping of him either physically, or, in respect of preponderant inconvenience in the shape of vexation or expense, prudentially, impracticable.
Registration, by whom performable?
In each case, the propriety of the choice will depend upon two circumstances:—1. The trustworthiness of the person, regard being had to the particular species of fact in question; 2. The vexation and expense, if any, attached to the employment of such person in such case.
The trustworthiness of the functionary (meaning the relative trustworthiness, as above) will again depend on the importance of the fact, coupled with the nature of the securities thought fit to be employed for securing the verity (i. e. the correctness and completeness) of the evidence necessary to enable the recordation to fulfil the purposes for which it is intended: of which in the next section.
If the form of the entry be reduced to a certain degree of simplicity—and if, in a form thus simple, the mode of recordation be adequate to the fulfilment of all its purposes,—mere moral trustworthiness, including in that view responsibility in both its senses, may be the sole object of regard: but if intellectual aptitude, and this of so peculiar a nature as to come under the denomination of scientific, be moreover requisite, a proportionable degree of nicety and difficulty will of course be attendant on the choice.
For the registration of facts of a regularly occurring nature, as above exemplified, provision has commonly enough been made in practice. Hands competent to the task have accordingly been found for it: nor has the finding of them been attended with any considerable difficulty. What difficulty there may be, seems confined, accordingly, to the finding of hands competent to the registration of facts of casual occurrence.
In the species of judge styled a justice of the peace, the official establishment of the British constitution possesses a species of public functionary well adapted for this purpose.
No ulterior functions of this nature can by their importance present a demand for a greater degree of trustworthiness, intellectual as well as moral, than is presented by several of those functions of which he is possessed already.*
From the class of attorneys, persons are taken without the plea of necessity, and at the choice of parties litigant (and without other restriction or condition than that of having two such functionaries named, one on each side,) for the exercise, and even the definitive exercise, of that part of the judicial function which consists in the collection of evidence.†
To prevent deperition, or at any rate deterioration of evidence, is the only (but it should seem the just) ground, on which a departure of this sort from the ordinary mode of collecting evidence can be defended: and, in a case of such necessity, the recurrence to hands of this description might, it should seem, be justified upon at least as good grounds, as when the same hands are employed without any such plea of necessity, as above.
In regard to testimony having for its subject legally-operative facts taken at large (of which facts collative or ablative in relation to property may serve for example;) by what sort of registrator they shall be collected—viz. whether by the judge of the competent judicatory, by a functionary of the judicial class, or by a functionary of the notarial class—will depend upon the probable absence or presence of a sufficient length of time. If there be no want of time, the sort of functionary who on other occasions is regarded as best qualified to the reception and extraction of testimony destined to be applied to a judicial purpose, is the sort of functionary to be employed in this as in other cases. If there be a certain or a probable want of time, if the occasion be so fugitive that it will not be within the power of a functionary so seated, and in a manner fixed to a spot, to arrest it in its flight,—then comes the necessity of admitting the service of a functionary of the other class, whose seat is of a more pliant and ambulatory nature. Under the head of want of time, is in effect included, on the part of such magistrates as can be applied to within the hour, want of inclination to undertake the business. Not only in respect of the time of doing the business, but in respect of the choosing whether he will do it all,—the magistrate, serving justice upon those gratuitous terms on which justice, by this species of judge, is always served, is not nor could easily be subjected to any inflexible obligation. The functionary of the notarial class, in the present instance, is so far in the same case: but, in the assurance of professional emolument, he beholds an inducement over and above any that applies in the other case.‡
How to secure the verity of the evidence thus provided.
Evidence being subservient to justice no otherwise than in so far as it is undeceptitious,—evidence that, by reason either of incorrectness or incompleteness, proves deceptitious, being worse than no evidence at all,—the attention bestowed on the securing the existence of the evidence, would, if produced by a steady and comprehensive regard to the ends of justice, be accompanied with an attention equally solicitous to secure the verity of such evidence.
As to the instrumental arrangements best adapted to this latter purpose, the have over and over again been brought to view. And in particular, under the head of preappointed evidence, the eventual necessity of employing them has been brought to view in the instance of judicial and other official evidence.
In the case of this species of preappointed evidence, as in the case of every other species of evidence, justice, for the reasons so often given, requires that on each occasion, unless in case of preponderant inconvenience, it be presented in the best shape possible: the verity of it provided for, not merely by eventual punishment and by interrogation, but by counter-interrogation by or in behalf of each individual party whose interest, in case of incorrectness or material incompleteness on the part of the evidence, is liable to be impaired by it.
When, merely in contemplation of future contingent suits, and therefore antecedently to any such suit, evidence for the establishment of any such legally-operative fact as is here in question is (as above) collected,—interrogation by or in behalf of any such party so interested is impossible: no such party being as yet in existence. Therefore, in the best of all shapes, the collection of preappointed evidence is not possible. What remains to be done, is to collect it in the next best shape; that is, the deposing witness speaking under the check of eventual punishment, and subject to interrogation, to be performed by the evidence-collecting judge.
Say that in every case the testimony shall be presented in the best shape in which it can be presented—say but this, and the legal effect proper to be given to preappointed evidence collected as above, is determined. Presented, in the first instance, in the best shape of which preappointed evidence is susceptible; if that interrogation or counter-interrogation which is necessary to the putting it in the very best shape be capable of being applied to it, and the party concerned in interest calls for the faculty of applying it, let that additional security be applied accordingly. But if, by any circumstance, such counter-interrogation have been rendered impracticable,—rendered so, for example, by death, insanity, or expatriation coupled with non-justiciability, on the part of such deposing witness,—then let it, in such its next best form, be received for what it is worth. Evidence thus imperfectly subjected to interrogation will always be more trustworthy than evidence altogether uninterrogated; more trustworthy, therefore, than affidavit evidence, upon which alone causes to any pecuniary amount are in such vast numbers determined in English practice; much more than evidence, the verity of which has not for its security either the scrutiny of interrogation or the fear of eventual punishment, as in the case of hearsay and casually-written evidence.
Suppose, for example, a witness whose testimony is necessary to the proof of some important legally-operative fact—a marriage, the execution of a last will, or other instrument of contract:—suppose him embarked, and on the point of sailing for a country subject to a foreign state, but visited on board, and his testimony collected, the vessel being detained for that purpose, by a functionary armed with the necessary power (in England, suppose a justice of the peace, or, in default of a justice of the peace, an attorney, to whom, under the conditions above mentioned,* a permanent commission for that purpose has been thought fit to be entrusted.) Whatever additional security for the correctness and completeness of the evidence so collected can be given, should, in the event of a suit grounded on such evidence, and at the instance of a party interested, be afforded. Not only the witness should, in the event of his being afterwards forthcoming, or by any other means justiciable and interrogable, be subject to interrogation; but so ought the justice of peace or the attorney.
In the case of the justice of peace or of the attorney, what is possible, just possible, is, that—in confidence that the evidence will not come to be made use of, and subjected to judicial scrutiny, till after he has, by death or expatriation, been placed out of the reach of interrogation—he may, for the purpose of favouring some individual, whose probable interest in the matter of the testimony is in his view, collect it in a manner partially and purposely incomplete.
But the existence of such a plan of improbity cannot reasonably be considered as in a preponderant degree probable. It is not probable, that, in consequence of the corruption in question on the part of the judge, the number of instances in which evidence not only false but deceptitious shall have been collected, will be anything like so great as the number of instances in which, for want of it, evidence necessary to the support of a just right will have perished, and the right have been thus defeated.
At any rate, no such danger can consistently be considered as preponderant, by a master of the rolls or a chancellor by whom an attorney is, under the name of examining clerk, or clerk in the examiner’s office, appointed and employed to collect the whole body of the evidence for pecuniary causes of the highest magnitude, sitting with the deposing witness in a closet with locked doors, free from all apprehension of being subjected to any such interiogation as here proposed.
In a code drawn up for this purpose, several provisions present themselves, which, if given in the character of instructions, and not of regulations sanctioned by pain of nullity, might contribute with advantage to the prevention of abuse.
Instructions stating circumstances by which the trustworthiness of provisional evidence, thus collected, would be regarded as increased:—
1. On the occasion of the examination, use your endeavours to collect impartial bystanders and auditors, the more the better, especially the more important the eventual effect of the evidence; inviting them to attest, if they think fit, by their signatures, the accuracy of the report made of the testimony, and the propriety of the mode in which it was collected: for example, if on board of a ship, the commander, with officers and passengers as many as think fit.
2. Wherever the examination is performed, the trustworthiness of the evidence will be increased, and your own conduct in the collection of it guarded against suspicion, if, at the indication of the party applicant, or at your own motion, you can engage some other trustworthy and intelligent person (professional or non-professional) to sit with you in the business.
By any precaution of this nature, if rendered obligatory on pain of nullity, the effect produced would in many instances be, to defeat the purpose. Rendered optional, whatsoever good effect they produce is pure from mischief. When the checks in question are called in, the evidence will command the confidence which it is thus made to deserve: where no such ground for confidence is formed, the eye of suspicion will be pointed to the transaction by its deficiency; and, from the persons employed in the transaction, an account of the causes of the deficiency will naturally be expected. In a case where evidence for establishing the circumstances attendant on a case of corporal suffering, whether from injury or calamity, is to be recorded, a medical practitioner would be an obviously proper assessor and assistant to the judicial functionary.
OF THE REGISTRATION OF GENEALOGICAL FACTS, VIZ. DEATHS, BIRTHS, AND MARRIAGES.
Uses of registration, as applied to genealogical facts.
Taken together, these three intimately-connected species of legally-operative events have already been characterized by the appellation of genealogical events. Taken together, the uses derivable from the registration of this class of legally-operative events, make a distinguishing figure when viewed in comparison with legally-operative events at large. Taken separately, the uses of each in some points coincide with, but in others are prominently distinct from, the uses of the other two.
I. Uses of registration as applied to deaths.
(1.) Uses having relation to the non penal (called civil) branch of law; and for which evidence of the naked fact suffices:—
1. To afford evidence of title by succession, in favour of natural or specially-appointed representatives.
2. To afford evidence of cessation of title, in the case of persons entitled to money or money’s-worth during the life of the deceased.
3. The deceased being under the tie of a matrimonial contract,—to afford evidence of the dissolution of such contract, in behalf of the surviving spouse.
4. The deceased leaving children under age,—to afford in their favour evidence of title to the services of some one in quality of guardian.
5. The deceased leaving a widow or descendants destitute of the means of subsistence,—to afford in their favour evidence of title to relief, at the charge of this or that individual, or of any public fund.
6. In any instance in which the testimony of the deceased would have been exigible, but on condition of its being delivered in the best shape,—to afford to the party who stands in need of it, the opportunity, if allowed by law, of producing it in any inferior shape in which it happens to be obtainable; such as hearsay, extrajudicially and casually-written, &c.
(2.) Uses having relation to the penal branch of law; and for which information concerning causes and circumstances is necessary.
These uses consist in the discovering or detecting, and, by fear of discovery and consequent punishment, preventing, death, in so far as it is liable to have for its cause human delinquency, whether malâ fide (i. e. accompanied with criminative consciousness,) or simply culpable, as being the result of temerity or negligence. Instance, among others, the case where a person not dead is interred on the supposition of his being dead.
The facts or circumstances necessary or proper to be taken for the subjects of registration will vary, according to the nature of the uses, as above distinguished, considered in the character of objects or ends to be aimed at.
Are the civil objects the only ones thought fit to be provided for? The fact of the extinction of life, and the sufficient description of the person, the identity of the deceased, may be the sole objects of attestation, and subjects of registration.
If the prevention or detection of delinquency in this line be also worth providing for, many other circumstances will be to be comprised in the inquiry, and in the declarations made in consequence.
1. Supposed manner of the death, whether gradual or sudden.
2. Supposed cause,—natural decay, or any external application, violent or otherwise: and in either case, whether human agency appeared to be in any way concerned in it.
3. The body, where, and how, and by whom, found.
4. Medical assistant, whether any, and who, called in; and if not, why not.*
II. Uses of registration as applied to births.
1. To ascertain and put out of dispute the fact of legitimacy or illegitimacy.
2. In either case, to establish, in favour of the child, title to maintenance at the charge of the proper person or persons.
3. In case of legitimacy, to establish, in favour of the child, its eventual title by succession to property left vacant by the death of its parents and other natural relatives.
4. In the meantime, to establish its title to the rights, and subject it to the obligations, attached to the condition in life into which it is introduced by its birth.
5. To establish the point of time at which it will have arrived at full age.
6. In the meantime, to establish its right to the services of the proper person in the character of guardian, and its correspondent obligation of submitting to the authority of that same person in that same character.
7. To prevent the wrongs that have sometimes been done to third persons by usurpation of sex. Example, the case of a female taking or giving possession of property intended by legal disposition to be confined to males.
8. In case of illegitimacy on the part of the child,—to prevent the wrong that would be done to legitimate children born of the same parents, or either of them, or to other more distant relatives, by an usurped participation of their rights.
9. By indication of its genealogy, to establish its incapacity of marrying within the prohibited degrees.
Measures subservient to the uses derivable from registration in the case of births:—
In ordinary cases—
1. Presentation of the infant to some public officer, by or on the part of the mother, within a certain time after the birth. Penalty, in case of omission. Ex. gr. as, in England, among members of the established church, presentation of the child by the sponsors to the minister, for the purpose of baptism.
2. Account thereupon given of the parents.
3. Mention and description thereupon of the midwife or midwifes, male included. If no professional midwife, mention accordingly: mention of any other person or persons assisting or present at the birth, or that there was no such assistant.
4. Register book to be kept by every professional midwife, according to a preappointed form: form for description of the parents included. Penalty on every person acting for hire without a licence.
In extraordinary cases—
1. Case of foundlings. Indication of some public officer, by whom the infant shall be taken care of, that maintenance may be afforded to it at the expense of some public fund, unless and until discovery shall have been made of some individual on whom the obligation have been imposed by law. Ex. gr. in English law, an overseer of the poor, by whom the infant is to be provided for at the expense of the parish.
2. Case of bastards born out of marriage. Provision for the examination of the mother, before or after the delivery, for the discovery of the putative father, to the end that the obligation of maintenance may be imposed on him according to law; or, in case of his inability, as well as that of the mother, on some subsidiary fund.
3. Case of bastards begotten in adultery. Provision for the examination of the mother, before the delivery, for the discovery of the putative father (as above,) in cases where the impossibility that the infant should have had the husband for its father is notorious; for example, by absence or impotence. In case of doubt, provision for establishing the fact by other evidence.
III. Uses of registration as applied to marriages.
1. In favour of each spouse, to establish his or her rights at the charge of the other: the husband’s title to authority over the wife; the wife’s title to charge the husband with debts contracted by her for her subsistence, and so forth.
2. In favour of the wife, to establish her title to the condition in life in which she is placed by her alliance with the husband.
3. In case of adultery on the part of either of them,—to establish the fact of marriage, for the purpose of any satisfaction which the law may have thought fit to afford to the other, and of any punishment which it may have thought fit to inflict upon the transgressing parties or either of them.
4. In case of misbehaviour in any other shape on the part of either to the prejudice of the other,—to establish, in favour of the party wronged, his or her title to whatever satisfaction may have been ordained by law, according to the nature of the case.
5. In case of a second marraige contracted or meditated on the part of either spouse, before any legal dissolution of the existing contract,—to contribute to establish, in favour of any party injured by such second marriage, his or her title to satisfaction for the injury; and likewise the obligation of the delinquent to undergo any punishment that may in that case have been provided by law.
6. At the death of either spouse, to establish, in favour of the survivor, his or her title, by succession or testament, to whatsoever portion of the property of the deceased may have been destined for him or her by law or legalized contract.
7. To establish, in favour and at the charge of children born under the marriage, their respective titles to the condition in life correspondent to that of the parents, together with such other rights and obligations as are above brought to view in the case of births.
8. In favour of third persons,—to prevent their being subjected to loss by purchase of immoveable or other property unalienably secured, by the marriage-contract, to either spouse, or to the issue of the marriage.
9. In a word,—in favour of third persons, to prevent their being subjected to loss in consequence of contracts entered into by either, on the supposition of his or her being single, or wedded to another.*
IV. Statistic uses derivable by the legislator from the conjunct registration of deaths, births, and marriages.
In general, the collateral uses, derivable in this shape from the registration of these genealogical events, are pretty well understood. In English practice, in particular, the discovery and publication of political facts finds men much less averse to it, than to the making a proper and consistent use of them. Many agree in making the ground, who would not agree about the superstructure.
In the account-books of the legislator, the number of the people is entered on both sides: on the side of profit, and on the side of loss: on the plus side, by the resources it affords; on the minus side, by the resources it stands in need of: on the side of profit, by what it produces and supplies; on the side of loss, by what it consumes. It produces food, and it produces mouths that are to be fed: it produces men for defenders, and women and children that require to be defended: it produces arms and men that ward off the depredator, and it produces the precious matter that invites him.
The quantities ascertained,—by comparisons made of them, various other indications, pregnant with inferences and regulations, are obtained.
1. By comparison of deaths with births, due allowance being at the same time made for immigration and emigration, the healthiness of each spot, as compared with every other at any given period, and as compared with itself at different periods, is ascertained.
2. Hence, in case of measures taken by the legislator for the increase of salubrity, the degree of success (if any) with which they are attended, may become discernible.
3. Hence, the individual whose situation admits of choice, and in whose eyes health and longevity obtain the preference to rival blessings, sees how and where to choose.
4. Here, too, the forecast of individuals finds a basis for its calculations, and the transactions grounded on them. Provision for a man’s self during his life, or for persons dear to him, to take place after his death, is thus secured against uncertainty and disappointment.
But, unless due allowance be made for the difference in point of longevity between different modes of life, severe deception and disappointment will be apt to ensue.
Aberrations of English law in regard to the registration of genealogical facts.
In most civilized states, and in England among the rest, religious policy has interposed; and, in the pursuit of its own objects, has, as well in respect of correctness as of completeness, deteriorated the whole mass of genealogical preappointed evidence.
In the instance of each species of genealogical event, it has substituted to the fact or event intrinsically material, a fact extraneous to it, and, though most commonly, yet not in its nature necessarily, nor in practice invariably, connected with it.
1. To registration of the fact of death, it has substituted registration of the ceremony of interment, and that only in the case where accompanied with certain formalities; one of which is, the presence and operation of an ecclesiastical functionary of a certain order: so that, if the body is disposed of in any other manner, or by a priest of another order, or without the assistance of a priest, no registration is to take place.
2. To registration of birth, it has substituted registration of baptism:† a ceremony which consists in the sprinkling the new-born child with water; on the occasion of which operation, certain words are to be pronounced, viz. in the form of a dialogue, in which one of the interlocutors must have been a priest, of the same order, as above: so that, if the child remains unsprinkled, or the sprinkling be performed without the accompaniment of the recently invented dialogue, or with the intervention of a priest of a different order, or without the intervention of any priest, no registration is to take place.
3. To registration of an instrument of marriage-contract, or of the fact of its having been executed, it has substituted the registration of the performance of a certain ceremony; on the occasion of which ceremony, certain other words are to be pronounced, viz. in the form of a dialogue, in which one of the interlocutors must again have been a priest, of the same order, as above: so that, if the ceremony be performed without the accompaniment of this recently-invented dialogue, or with the intervention of a priest of a wrong order, or without the intervention of any priest, no registration is to take place; or, if any registration happens anywhere to be made of the transaction, no care is taken on the part of government to preserve it, or put it to use.
On this occasion, had it happened to these all-powerful functionaries to join in taking for their object or end in view the welfare and good behaviour of the parties to this contract, care would have been taken (as already intimated) that, on the occasion and by means of this ceremony, a correct and complete conception, and (without which it can neither be correct nor complete) a particular conception, should be formed by the parties to this most important of all contracts, of the obligations with which they are respectively about to charge themselves, and of the rights which they are about to acquire. But to the priest, whose interest centres in the obtaining of worship with the fruits of it for himself, and to whom the temporal welfare of ever-sinning mortals is an object beneath, oftentimes even avowedly beneath, his care, their good behaviour in respect of the contract is at best a matter of indifference; while to the lawyer, whose prosperity rises with the unhappiness and misconduct of mankind, it is matter of advantage, that obligations and rights of this class, as of every other, should float in perpetual uncertainty; and that, in this as in every other part of the field of action, the rule of action should remain for ever as completely unknown, and as incapable of being known, as possible. An awe-inspiring formulary—composed of vague generalities and historical allusions, and (by the careful exclusion of all specific delineation of rights and obligations) rendered as barren of useful and applicable instruction as possible—was therefore unexceptionably conformable to both their interests: and hence, on this as on so many other occasions, on the spurious and usual pretence of warming and guiding the heart, a composition is framed and employed from which the head can derive no use.
It is on pretence of fulfilling the will of Christ Jesus, that the mode of recording this most important modification of preappointed evidence has been rendered to so great an extent inapplicable to the purposes to which it has been, or ought to have been, directed; and in not so much as one of the cases is Christ Jesus so much as pretended to have ever said anything about the matter.
Religion is thus planted and kept on foot by force, under the notion of its indispensable necessity to the well-being of the present life: yet, when opportunity presents itself for rendering it so, the opportunity is, with an uniformity too constant not to be the work of design, suffered to slip by unimproved.
Under the old French law, matters were so arranged, that, with or without the assistance of the mother, it depended on any person or persons having possession of a new-born child, if not absolutely to give to it what parentage they thought fit, at any rate to render its real parentage absolutely unascertainable. The nurse (so for strictness be it said,) in producing the child to the officiating functionary, the parish priest, spoke of it as having such and such persons for its parents: no oath administered, no interrogation proposed, no means provided for subjecting the deponent to eventual punishment in case of falsity: on this naked assertion, was the fact entered upon the register as certain. To prove the falsity of a declaration of this sort, no evidence whatever, not the testimony of any number of witnesses, testifying upon oath, and upon interrogation administered in the ordinary mode, was admitted.* Hearsay evidence was thus not only admitted, but admitted to the exclusion of original evidence.
The fraud thus practiceable had its good effects as well as its bad ones. In the case of a child born in adultery, in circumstances which rendered it notoriously impossible that the husband should have been the father, the reputation of the mother, the peace and honour of the family, was saved from blemish: and so in the case of a birth without marriage.
Upon the whole, was it eligible or not eligible, that transgressions of this sort should be concealed? If eligible, the purpose might have as effectually been provided for without, as by, the falsity. In this case, the proper subject for registration would have been the fact that a declaration to such an effect was made—made by individuals styling themselves so and so; not the inference, which, as above, was surreptitiously substituted to it.
Among the advantages resulting from the substitution of the plan of honest reserve to that of connivance at fraud, would have been the information of a statistic nature which in that case it would have been in the power of the legislator to derive. The cases of concealed parentage being on this plan distinguished from the ordinary class of cases, the proportion between the one and the other at different periods would thus have been open to observation.
OF OFFICES FOR CONSERVATION OF TRANSCRIPTS OF CONTRACTS.*
Uses of transcriptitious registration as applied to contracts.
What it may be of use to bring to view on the subject of this application of the principle of preappointed evidence, seems referable to one or other of two heads:—viz. 1. Uses to which offices of this description may be applied; 2. Means of adapting them to such their respective uses; 3. Limits to be set to the employment of the principle, i. e. to the application of it to its respective uses.
First, in regard to uses.
1. Of the uses to which a conservatory of the kind in question may be applied, the simplest and most obvious is that of serving to whatsoever uses the original instrument, be it what it may, was designed to serve. The first use of transcription is that which is identical with that of scription. For every fresh transcript, a fresh security against the evils, for the prevention of which, the original script was designed. Preservation—simple preservation—is the name by which this use may be designated.
The description of persons by whom, and by whom alone, to the extent of this use, the benefit is reaped, are the parties to the contract, together with (in case of death) their natural representatives.
2. Next to this comes the sort of use, the benefit of which is designed for third persons—persons other than the parties to the contract and their natural representatives. Notification, or promulgation, or, when considered in another point of view, reference, are the names by which this use may be expressed.
If, with relation to any such third persons, notification of the contract be regarded as prescribed by justice and good faith,—omission of such notification, where performance is regarded as practicable, may be considered as a species of fraud, viz. fraud in the shape of undue reticence.†
The particular cases in which this collateral benefit is reaped, may be thus exemplified:—
I. Conditional dispositions made of particular subjects of property (most commonly in the shape of immoveable property,) for the purpose of securing the repayment of money lent; possession, or apparent proprietorship (as by receipt of rent,) remaining unchanged: as in the case of mortgages.
Persons liable in this case to be injured by the non-notification are—
1. Subsequent mortgagees: other persons to whom the like disposition for the like purpose might, for want of notice, come to be made of the same subject.
2. Subsequent creditors at large: persons to whom—in virtue of debts owing to them by the proprietor of the subject, the mortgager—a right is acquired to property to a correspondent amount, in whatever shape, belonging to such their debtor; and who would not have trusted him with the monies respectively in question, had it been known to them that the property thus in appearance free, was in reality charged with the incumbrance.
3. Subsequent purchasers: persons by whom the subject-matter in question might, for want of such notice, come to be purchased, at a price proportioned to the value which it appeared to have—viz. the value which it would have had, had it not been subject to this charge.
II. Absolute dispositions made of a particular subject of property, or of the whole mass of a man’s property; possession or apparent proprietorship, as before, remaining unchanged: as in the case of the instrument called in English practice a bill of sale, conveying the property of a mass of moveable goods; or in the case of a settlement made, for example on the occasion of marriage, conveying a mass of immoveable property, but in such sort as not to take effect till after the proprietor’s death, or at some other future point of time, determinate or indeterminate.
Persons liable to be injured by non-notification, are in this case the same as in the case just mentioned.
III. Long leases: dispositions made of a particular subject of property (most commonly in the shape of immoveable property,) to take effect and continue for a long portion of time, but with intent that, at the expiration of that length of time, it should revert to the disposer or his representatives.
Persons liable in this case to be injured by the non-notification, are by possibility the alienor himself, but much more probably his representatives: as in the case of a house let according to the English custom, for a term of 60 or 99 years,—a disposition which in some instances has been made for a peppercorn, or other small rent—so small as not to be demanded: whence oblivion of the contract, and loss of the property to the representatives.
Mode of adapting the system of transcriptitious registration to its uses.*
Under this head, five subjects of consideration present themselves:—
1. Contracts registrable, contracts fit to be included in the system of registration, what.
2. How much to be registered?—the whole, or what part?
3. Means of enforcement, what.
4. Mode of reference and notification, what.
5. Mode of designation, in case of land, what.
I. What are the sorts of contracts that shall be registered?
1. For the benefit of parties—at the instance of any party, any contract whatsoever; he paying for the advantage such reasonable price as shall be fixed by law.
2. For the benefit of third persons—for prevention of fraud to the prejudice of third persons,—all contracts, from the non-notification of which, fraud to the prejudice of any third person is with reason to be apprehended.
3. For the security of persons who mean to purchase land, or to accept of a charge upon it as a security for money lent,—all contracts (for instance) by which the title to property in the land in question is capable of being affected.
II. Of each contract, individually taken, how much shall be consigned to the register? Shall it be entered in toto, in abridgment, or in extract?
Expense apart, there can be but one answer: enter the whole. By a complete transcript, you are quite sure that every purpose will be answered: that exactly the same effect will be produced by anything less than the whole, cannot be asserted with equal confidence.
So far as the interest of parties alone is concerned, omission of any part will hardly be regarded as desirable. In the transcript, is there any part that would be superfluous? So would it then be in the original: and it is from the original, and by that means from the transcript, not from the transcript alone, that the defalcation ought to be made.
It is only with a view to the interests of third persons, that any reason can present itself for preferring either an abridgment or an extract to an entire transcript; and that with no other view than that of avoiding expense.
For the benefit of third persons, consign to the register (it will naturally be said) so much, and so much only, of the mass, as it can be of use to third persons, as such, to be informed of.
Indications beyond comparison less bulky than the whole instrument, might, it is true, to third persons, be in some respects preferable to the whole; and that not merely on the score of the expense, but even on the score of information: since, by a slight and concise intimation given of the purport of such parts in which alone the individual third person in question is interested, the labour of perusing the entire instrument may be saved.
The truth of the observation is beyond dispute: but, expense apart, the practical inference is, not that the partial indication should be substituted, but that it should be added, to the whole.
By the substitution of an abridgment or an extract to a complete transcript, danger of error would moreover to a certain degree be introduced: whereas in a transcript, all danger, all possibility, of error, may be avoided.† Making an abridgment or an extract is work for the head—work to which all heads may not be equal: making a transcript is, or may be made, work for the hand only.
III. Mode of enforcing observance.
Supposing no notary employed, this is a point that may be attended with difficulty. But everywhere, with the exception of the few species of contract by the simplicity of which, be the importance of the value at stake ever so considerable, such assistance is generally regarded as unnecessary,—everywhere, and in English practice in particular, such assistance is called in.
For cases of necessity, in which the recurrence to that assistance is by the pressure of the exigency rendered impracticable, provision might be made by giving to the contract a temporary validity, to the end of a length of time within which the practicability of obtaining such assistance may be regarded as certain. Due provision having thus been made for these cases, the intervention of a notary may without danger of injustice be regarded as necessary to the validity of the contract.*
Owing to the imperishable nature of the subject-matter, contracts having relation to immoveable property will be regarded as constituting a class in relation to which the demand for registration is in a particular degree manifest and incontestable: but these are the cases in which the scientific assistance of a professional man is most apt to be needed, and the certainty of obtaining it within time most entire.
The intervention of an assistant of this description being then supposed,—in his person the legislator has a security for the observance of this, as of all other, formalities, which it shall have been thought fit to prescribe.
The exemplar being reserved in his hands for the purpose,—to him, under a penalty, it belongs to transmit to the proper register office such exemplar within the space of time prescribed.
To him it might belong to keep an appropriate book, or set of books, in which, under a set of heads prescribed by the legislator (prescribed with a view to the uses, as above indicated,) entry shall be made of each contract in which he has been concerned.
The office of each such notary becomes thus, to the extent of the business of this sort done by him, a sort of register office: and, of every such book, an exemplar might be periodically transmitted to the register office belonging to the county or other district within which his residence is situated.
Such seem to be the means which justice and reason recommend for ensuring the observance of this as of other formalities. Under the influence of the partnership interest begotten by the fee-gathering system, custom has established a very different one. In this case, as in the case of operations and instruments of procedure, nullity is the consequence of non-observance: without any tolerable ground for supposing that notice of such consequence will uniformly be received—that the party will be apprized of the sword hung by a hair over his head—without any thing done by the legislator towards rendering it probable. For the neglect committed by one man, punishment, and without regard to proportion, inflicted on another;—for the misbehaviour of the inferior member of the law-partnership, the attorney, punishment inflicted by the superior members of the same partnership, the judges, on the attorney’s client, the party who had no share in the blame.
IV. Mode of notification and reference.
To the first clause or paragraph of a scheme for registration grounded on the current principles, I read a marginal content in these words:—“No deed, will, or codicil affecting land, to be valid, unless enrolled within six months; or three years, if the deed or will be executed without the kingdom.” And then, to a second clause or paragraph—“The enrolment to be notice to all persons.” And afterwards another:—“No land to be affected by a judgment, unless notice left at the reference office.”
If, in the instance of every “deed, will, and codicil affecting land,” on the margin of the paper on which the instrument was written, the text of a portion of law were printed, denouncing invalidity (as above) as the penal consequence of the neglect in question, viz. the non-enrolment within the appointed time,—the injustice of the provision would, in part at least, be done away: the client would be punished for neglect which would be the act of his lawyer; but the act required to be performed would not be altogether out of the power of him on whom the obligation of performing it was imposed.
If, in the instance of every deed serving for the purchase of land, or for the lending of money on the security of land, on the margin of the paper were to be found in like manner an intimation of the existence of a system of register offices, adapted to the purpose in question,—together with a recommendation to search the proper register office, for the purpose of ascertaining whether the land in question had been the subject of any such disposition remaining still in force;—in this way (supposing moreover the practical observance of the provision prescribing registration,) notice of the enrolment—real notice, not merely constructive, i. e. sham notice—would be given, if not to all persons, at any rate to all persons concerned in point of interest in the receipt of it.
Six months are, on the above plan, allowed for the operation of enrolment. Within the six months, in confidence of the non-existence of any such contract affecting the land in question, a man purchases the land, and pays the money to the seller, who goes off with it. The money gone, then comes the enrolment; the sole professed object of which is to prevent the payment which has been made.
Should any real desire of opposing effectual prevention to such mischief be entertained, the course pursued will be somewhat different. A set of heads, adapted as above, being preappointed by the legislator (and a very short and simple one will be adequate for the purpose;) the notary, having prepared, along with the instrument of contract, a letter of advice addressed to the register office, in which letter of advice is contained a memorandum of the contract, containing an intimation of the matter belonging to those several heads (viz. names of the parties, situation and quantity of the land, general nature of the disposition made of it, whether sale, settlement, lease, or mortgage,) brings it, together with the instrument of contract, to the place appointed for the execution of the instrument of contract; and, as soon as the ceremony has been performed, delivers in at the next post-office such letter of advice; obtaining from the postmaster or his substitute, his signature to a receipt, also ready prepared, and in which the direction inscribed on the letter of advice is transcribed.
In the memorandum of which the substance of this letter of advice is composed, notice sufficient to answer at least the temporary purpose would be already given; as the caveat preparatory to an invention-patent answers for the time the purpose of the patent itself. But the very body of the instrument of contract itself,—why need it wait longer? An exemplar for the collateral purpose being already brought into existence along with the other exemplars allotted to the direct purpose of the contract, there will be no more difficulty in sending by the same conveyance, and at the same time, this complete exemplar, than the compressed and imperfect minute of it.
The letter of advice so transmitted (as above) to the register office, and deposited, or filed (to use the lawyer’s word) in that office, serves, from the instant at which it is so deposited, for the information of searchers: i. e. of persons having occasion to learn whether any contract has been entered into, whereby the state of the property of the land in question is affected.
Thus, then, the purpose of searchers is answered. But the security and tranquillity of the notary by whom the memorandum or exemplar of the contract was transmitted, remains to be provided for.
For this purpose, instead of one exemplar of the memorandum (as above,) he sends two to the register office.* Of these two, one remains in the office (as above;) the other is re-transmitted to him by the same conveyance, having first received, besides the direction, an acknowledgment of receipt, dated and signed by one of the clerks belonging to the office; to whose onomastic signature may be added, and (for expedition) by a stamp, the words by which a designation is given of the office.
If, besides the memorandum of the contract, it be a case in which an exemplar of the same contract is to be deposited at the office, whether on that same day or a subsequent one;—in this case, instead of two exemplars of the memorandum, the notary sends to the office three. One remains at the office (as above;) another is re-transmitted to him with the mark of acknowledgment (as above;) the third, being re-transmitted to him on the day on which the instrument of contract is received at the office, serves, by the addition of a few words, for the acknowledgment of the receipt of the instrument of contract so received:—“Received this day, the deed of which the above is the memorandum.”†
V. Mode of designation, in case of land.
A short hint on this subject may not be without its uses.
A geometrical survey of the island of Great Britain by order of government has for many years been in hand. Among the purposes to which that important work will be found applicable, that of serving for the designation of portions of land, for the purpose of conveyances and other contracts, may, it should seem, be numbered.
In the vestry-room, or any other more convenient place, in the custody of the minister, or minister and church wardens, of each parish, might be deposited a copy of that part of the map which exhibits so much of the land as is contained within the precincts of that parish. The map may be divided into squares, and, in deeds, the portion of land in question described by reference to the squares.
In, and in the near neighbourhood of, a town or village, such part of the ground as is already covered, or likely to be soon covered, by buildings, might require to be exhibited by a separate map constructed upon a larger scale.‡
Each parish being thus provided with its authoritative map, here would a standard of reference, to which, in all suits in which situation and quantity of a portion of land came in question, reference should be made: made, in the first place in the instrument of demand, then in the instrument of defence, and lastly, in the judgment.∥
Limits to the application of the practice of transcriptitious registration.
As in case of collection of evidence, and other judicial operations, so in the case of contracts,—notification, though in some respects purely beneficial, will in other respects be, in some cases, and with reference to some description of persons, pernicious.
From this consideration, two objects of solicitude are imposed upon the legislator; viz.
1. Not to require or permit divulgation, where the mischief of it, when carried to the necessary extent, is deemed preponderant over the good.
2. Where the good is preponderant over the mischief, still not to cause of suffer the communication to be made or received by any persons, in relation to whom either no benefit accrues, or, if any, not to such an amount as to outweigh that of the mischief done to others.
So far as the act of registration is purely optional—not performable but at the instance of the only party or parties interested, and, in case of divers parties, of all the parties interested,—the practice can have no need of limitation.
But, by the very act of registration, the existence of the contract is exposed in some sort to disclosure.
If, in such cases, non-disclosure, so far as practicable, be upon the whole desirable,—then comes the question, what, consistently with the act of registration, shall be the arrangements taken to prevent it?
This case is in a manner confined to last walls: under which denomination may be included, if there be any difference, gratuitous dispositions of property made by a single person, not to take effect till his death, and revocable by him at any time during his life.
A contract of this sort it may happen to a man to be desirous of depositing in a public register office for safe custody. In such a case, a desire natural to every man is to conceal the particular terms of it. This object may, in such a place, be effectually secured, by the universally known expedients of folding up and sealing. But in such a case it is not always enough to a man that the particular terms of the disposition made by him should be unknown: it is frequently of essential importance to him that the fact of his having made any disposition of that nature should remain equally unknown and undiscoverable. This object may with little danger of failure be accomplished, by the equally obvious expedient of a solemn engagement to that effect entered into, and universally known to be entered into, by the several officers belonging to the office.
On the mode of correspondence between the individual and the office in this particular case, no separate observation need here be made. Of what has been said on that subject in a former section, the application to the present case is sufficiently obvious.
In the case of a last will, concealment cannot operate to the injury of anybody: property is not bound by it till the death of the party takes place, and then the concealment may be, ought to be, and naturally will be, at an end.
It is only where the interests of third persons of a particular description are liable to be affected by the contract, if concealed from third persons of that description,—in which case, on that consideration, it is proposed to render registration compulsory,—that any question can arise concerning the degree of secrecy, if any, which is proper, and the arrangements fit to be taken in the view of securing it.
Taken in its totality, the subject of contracts is to such a degree multifarious as well as extensive, that, in treating of it, to give to conception a determinate object, here as elsewhere, it will be of use to take, in the first instance at least, a particular class of contracts: say, for instance, in consideration of their superior importance, those which affect property in immoveables.
In this instance, is it of use upon the whole that secrecy in any degree, secrecy as against anybody, should be preserved?
Those who contend for the affirmative, will, on these occasions, be apt to deal in generals. All families have their secrets; from the divulgation of which, great mortification and inconvenience may arise. The state of a man’s property is universally regarded as being of the number. In the case of commercial men, when revenue has been the object, particular arrangements, having for their professed object the preservation of secrecy, have, under the British government, with much anxiety been established by law.
Answer:—By the communications necessary to the collection of the property taxes,—by these communications, if divulged, or made public, or rendered generally accessible, the totality of a man’s property would be made known. But, by no such registration as it could be proposed to apply to contracts, would the whole of his property be made known or knowable.
The only case in which it could be supposed that, by the registration of contracts, the state of a man’s property would be disclosed, closed, is that of a contract affecting land (say a mortgage, or a marriage-settlement,) in the instance of a man, the bulk of whose property consists in land.
By a marriage-settlement, if known, no property is pointed out as departed out of the family. The property indeed, to the extent of that which is the subject of the settlement, is shown not to be liable to be disposed of, beyond the lifetime of the present possessor, in discharge of debts. But that is the very thing which individuals in general are in point of interest concerned, and in point of justice intitled, to know;—viz. lest, by trusting their money or money’s-worth to one who, knowing he has not wherewithal, intends not to reimburse them, they should be defrauded.
Even by a mortgage—taking the state of the family on the footing of that transaction alone—it can never be known that any diminution of property has taken place. To make improvements, by which the property may be augmented, or provide for incumbrances, the existence of which is already matter of notoriety, such as the payment of younger children’s fortunes, may have been the object.
But—in so far as the effect of the mortgage is to place property out of the reach of creditors, out of the reach of justice—in so far is it matter of justice that the transaction should be generally known; lest, as in the former case, fraud should take place.*
The defraudment of creditors, for want of knowledge of the contract, is a mischief (it may be said) that will only have place in here and there an instance: in no case but in the case of prodigality, which, according to the well known and practically useful observation of Adam Smith, is a case comparatively rare; whereas, by the divulgation of such contracts, a mischief is produced which extends to everybody.
Be it so. But this supposed mischief, the result of the disclosure of mortgages, when it does take place,—what, after all, does it amount to?
When everything is distinctly explained, it amounts to neither more nor less than this; viz. that a man is prevented from causing his neighbours and acquaintance to suppose his property to be greater than it is. But of this prevention, where is the real mischief? What harm, even if he should be prevented from obtaining, if not money, at least reputation, on false pretences—that sort of reputation which consists in the opinion of a man’s being possessed of money?
To obtain money, or money’s-worth, upon false pretences, is made punishable—is treated as a crime next to capital. To obtain advantage in any other shape—in any of those shapes in which it is (as in most shapes it is) transmutable into money, need not certainly be punished in the same degree; but to what good end of morality or policy can it be protected and encouraged?
Supposing it a settled point, that, in relation to contracts affecting land, indiscriminate publicity ought to be granted, the channels and the means are sufficiently obvious. Newspapers are employed for giving publicity to declarations of bankruptcy and to dissolutions of partnerships: newspapers, and in particular the local newspapers of each county, or correspondent territorial district, might be employed for giving publicity to all contracts by which land in that district is affected.
Not that, even for the purpose of limited and appropriate notification, this indiscriminate but momentary mode of divulgation would be sufficient: the day past, the newspaper of the day is forgotten. For search to be performed at any time, a register office would not the less be necessary.
Importance of reducing within compass the matter to be transcribed.—Aberrations of English practice in this respect.
If improving in point of extent and utility the practice of transcriptitious registration, be among the ends which the legislator ought to propose to himself, two main objects, in the character of means, call for his regard: 1. The giving facility to the operation, viz. that of transcription itself; 2. The reducing within compass the matter to be transcribed.
Everywhere, under the influence of the fee-gathering system, the business of penning instruments of contract (the business of conveyancing as it is called) having been the work of the fee-gathering partnership, Judge and Co., executed under the impulse and direction of the interest of the firm—an interest acting in a direction diametrically opposite to that of the community at large, and thereby directly repugnant to the ends of justice,—the object, in the case of these legalized expressions of private will, as in the case of the expressions of public will, has been,—what? To render, to the extent of the patience of a deluded people, every discourse belonging to this class, as ill-adapted as possible to the common purposes of discourse—to the purposes which, in every discourse, of this most important class in particular, ought to be aimed at with more especial care:—in a word, to render it as obscure, as ambiguous, and, for the joint purposes of obscurity and ambiguousness, as unnatural, and absurd, and voluminous, as possible: to add to the natural obscurity of the subject, as much factitious obscurity and impenetrability as could be given to it by the boundless accumulation of excrementitious matter, as disgusting and repulsive as it could be mace to the taste, as well as impenetrable to the understanding, of the non-lawyer; that is, of every individual who is not paid for wading through it.
On this as on other parts of the field of legal lucre, there has been of course a perpetual contest, and trial of skill, as between the lawyers of the several civilized nations: but by the English lawyer (unless, in this part of the race, the exertions of the Scotch lawyer should be found to afford, in some respects, an exception,) all competitors of all other nations have been left far behind. So far as concerns the mere heaping of words upon words, his exertions, or the fruit of them, may perhaps have been equalled or exceeded. But in the practice of what is called fiction, legal fiction,—the most pernicious and basest sort of lying—lying by or with the concurrence and support, as well as for the profit, of the judge,—he has found an implement, in the use of which he has in a manner stood alone. By the help of this instrument of fraud and extortion, he has contrived to make the individual pay, as if it were the plain and honest expression of his will, for a tissue of absurdities, which have no more natural connexion with it than a chapter out of the adventures of Baron Munchausen, or the tales of Mother Goose.*
In a marriage-settlement drawn by a French or a German lawyer, there may possibly be (though it is difficult to conceive how there should be) as many useless and thence pernicious words, as in the non-mendacious parts of the composition of his brother of the trade in England: but, in so far as morality is concerned, if veracity be considered as a branch of it, the most dishonest composition of the Frenchman or the German, is, in comparison with that of the English attorney and his associates (for the work for which a single hand suffices on the continent is in England the work of legion,) the language of sincerity and truth.
To substitute truth to falsehood, common sense to absurdity, would require nothing new but will on the part of the English legislator. Or the exertion and ingenuity which is lavished in the service of injustice, a small portion would suffice for the purposes of justice.
Already the legislator is in use to give formularies for judgments of conviction: let him extend the application of the same incontestably useful principle and honest practice to instruments of contract, to conveyances.
Not a fiction but is capable of being translated, and occasionally is translated, into the language of truth. Burn the original, by the hands by which so many less noxious nuisances have been burnt,—burn the original, and employ the translation in its stead. Fiction is no more necessary to justice, than poison is to sustenance.
To the mass of judicial lying called a fine—to the other mass of judicial lying called a recovery, substitute the plain truth, by which the legal operation of either might be declared in half a dozen lines. To the lease and release, substitute the feoffment, to which these two correspondent masses of falsehood and absurdity have themselves been substituted. In the case of the mortgage, declare that right of possession to be eventual, which neither is nor is meant to be anything more.
All these instruments of fraud, and receptacles of falsehood and absurdity, teem with fees; in comparison with which, all else is, in the eye of a fee-fed lawyer, without value. But fraud, howsoever necessary to the creation, would not be necessary to the preservation, of the fees.
OF THE PRINCIPLE OF PREAPPOINTED EVIDENCE AS EXEMPLIFIED IN THE CASE OF REAL EVIDENCE (EVIDENCE FROM THINGS.)
The subject of real evidence will be fully considered in the next book.† There will, however, be no inconvenience in saying here what seems fit to be said with respect to the application of the principle of preappointed evidence to the field of real evidence.
The demand for instruction on this subject is not very considerable. But conception may be assisted, and the purpose of illustration answered, by bringing to view some of the most remarkable instances in which this application has been, and continues to be, generally made.
In the case of immoveable property, the fences of various kinds, by which intrusion from various sources is, with a degree of success more or less complete, endeavoured to be guarded against, serve at any fate for the delineation of boundaries, and thence of the dimensions of the space contained within them. In the case of landmarks, the purpose is confined to the mere delineation, or rather indication, of boundaries.
The function, which, in the case of boundaries, is permanently performed in relation to portions of immoveable property—to quantities carved out, as it were, of the surface of the globe which we inhabit—is performed occasionally in relation to masses of moveable property, by the several standards of weight and measure: chiefly on the occasion of their changing owners, or on the occasion of their consumption, or change of form, in the hands of the same owner.
Proprietary marks—marks of ownership—may be considered as articles of preappointed real evidence; unless they be considered as constituring so many symbolic modes of signature, indicative of the proprietor, by being significative of his name. At any rate, and whether of real or written, they are so many articles of preappointed evidence.
Imprinted upon any subject-matter of property, the proprietor’s name at length would be unquestionably an article of written evidence: no less so the initials, as in the case of G. R. for George Rex. But when, instead of the G. R., come the broad arrow on timber, or the strand in sail-cloth, then comes the doubt (happily altogether an immaterial one) as between written and real evidence.
Hydrometers, thermometers, and electrometers, are so many other standards of quality, confined, each of them, in its application, to a particular species of body.
As standards or indexes of quantity, so may standards or indexes of quality, be considered as so many articles or sources of real evidence. Where quality depends upon proportions as between the elements of the same compound body, standards of quantity serve in this way in the character of standards of quality.
Thus, different species of hydrometers serve for indicating the proportional quantities as between alcohol and water, and thence the strength of the ardent spirits composed of the two ingredients. Applied to infusions of malt, or other fermentable matters, a similar instrument, under the name of saccharometer, serves for indication of the proportions between the quantity of sugar and other fermentable matters mixed with the water, and thence the strength and value of the wort.
Touchstones serve as standards of quality, by indicating proportions as between the noble and ignoble metals.
Mint marks applied in the same view, wear an ambiguous aspect; being referable either to the head of real or written, circumstantial or direct official evidence.
The following are other examples of preappointed real evidence:—
In the hands of the importer or manufacturer, taxes are imposed upon various sorts of goods; that is, previously to the distribution made of each article in the way of sale, he is subjected to the obligation of paying to the officers of the public revenue a sum of money proportioned to the quantity and quality of the article. Upon the outside of each packet containing a determinate quantity of the article, a stamp or other mark is appointed to be impressed by the officer of the revenue, on receipt of the sum assessed upon it. The existence of any such article, in a certain quantity, not provided with such a stamp or mark, is at the same time directed to be received as sufficient evidence of the species of delinquency consisting in the non-payment of the appointed tax.
For reasons, the policy of which is a question foreign to the present purpose, the exportation of sheep and sheep’s word was for a long time thought fit to be prohibited. For the enforcement of this prohibition, a provision is inserted, prohibiting the packing of this species of commodity in masses exceeding a certain quantity (14lb.) unless it be in packages of a certain description, bearing on the outside the word. ‘Wool’ in conspicuous letters of not less than a certain length (3 inches.* ) Thus it is that the existence of a quantity above the small quantity so allowed—otherwise than in one of the sorts of packages so expressly allowed, and bearing on the outside of it the above-mentioned positive evidence of its contents—is, in any place of the description in that behalf specified, preappointed to be received as an article of negative evidence sufficient to warrant a decision convicting the preprietor (or other person having the article in his possession) of an individual act, belonging to the species of acts which the law has on this occasion thought fit to insert in the catalogue of punishable offences.
Standards of quality have already been mentioned as among the already established applications of the principle of preappointed to real evidence.
But, in many instances, an indication of the maker of the article is either the best or the only evidence of its quality that can be presented to the cognizance of a person whose interest, in the character of an owner or occupier, it is, to possess a just conception of it.
Compared with the instances already brought to view, such evidence of quality may be considered as belonging rather to the head of circumstantial than of direct evidence. Perhaps even those others might be considered in the same character: but be this as it may, how satisfactory a species of evidence it is in many cases, scarce any person but has had occasion to observe.
Where a manufacturer has obtained a reputation on the score of the quality of his goods, he is not apt to be insensible to the value of it, or to fail of taking measures, so far as depends upon himself, for availing himself of it: viz. by exhibiting, according to the nature of the goods, either upon the face of the goods themselves, or of the receptacles in which they are kept, an intimation of the hand from which they came.
Unfortunately,—by the same interest by which the real maker of superior goods is excited to make known to individuals in general, in the quality of possible customers, the hand of the real maker from whom they received their quality, and from whom accordingly other goods of equal quality may naturally be expected for the same price,—other manufacturers of goods, of the same denomination but of inferior quality, are excited to have recourse to that species of fraud which consists in causing these inferior goods to be considered as having been the work of the same hand.
A practice of this kind is neither more nor less than a species of fraud—a species of forgery: possessing, if not in equal degree, in the same kind (to a considerable extent at least) the characters of that crime.
The injury, of which it is the instrument, falls in three distinguishable shapes, and on two different descriptions of persons:—
1. On the purchaser, who—the inferior goods being imposed on him for the superior—is defrauded to the amount of the difference in value.
2. On the maker of the superior goods, the rival manufacturer, who—the inferior goods being purchased instead of his superior ones, is thus injured in his property, defrauded to the amount of the profit upon the goods purchased,—in consequence of the deception and consequent mistake.
3. On the superior maker again, who, besides losing the credit attached to the authorship of the superior goods which he really made, is saddled with the discredit attached to the inferior goods which he did not make,—and is thus injured in respect of his professional reputation: and, reputation being in this sort of case a main source of property, he is thus, though in a remote and contingent way, injured in his property to an undefinable amount.
In his character of guardian of the public morals, as well as in that of protector of individual property, it seems incumbent on the legislator to do what depends on him towards the suppression of fraud in this shape. Happily—notwithstanding the names of fraud and forgery, which with so indisputable a propriety may be attributed to it—measures attended with little rigour, with rigour far inferior to that which is practised in the case of the most common and most formidable of the offences characterized by that name, promise to be sufficient.
Of the measures that seem requisite in this view, intimation may be made under four heads:—viz. 1. Prohibition; 2. Registration; 3. Procedure (summary;) 4. Penalty. Under each, a very slight and general designation is all that room can be found for in this place.
1. Prohibition. If, on goods of all sorts without exception, names and descriptions sufficient in all cases for distinction could be delineated,—prohibition, under a slight penalty, and without registration, might suffice. But the contrary is beyond dispute.
2. Registration. Offices for this purpose would need to be instituted: number and situation depending on local circumstances. But, how dissimilar soever the nature of the goods, one office at a place might serve for all.
Subjects of registration, the mark which each manufacturer might think fit to employ, according to the nature of the goods. The use of the register is, that, a manufacturer having made choice of his mark, no other manufacturer in the same line shall be at liberty to employ either that same mark, or a mark likely to be mistaken for it. To secure a sufficient degree of diversity, a previous licence would, it not absolutely necessary, be at any rate of use. On the other hand, the danger of arbitrary power, and of consequent oppression or extortion, would require to be taken into the account.
For the establishment of the office, compulsion applied to any purpose would neither be necessary nor proper. No compulsion applied to persons not sharing in the benefit, to force them to share in the burthen: in other words, no salary at the public charge. No compulsion to force any manufacturer to register his marks. By each individual in whose eyes the security is worth purchasing, it will be purchased.
The danger would be—where the assignment of the marks required judgment, time, and attention—lest, if the fee for the licence were not left to be adjusted to the quantity of time and attention that might eventually be necessary, assignments should be rashly made or refused: in the opposite case, lest here, as in the judicial offices, the opportunity of increasing official profit by unnecessary consumption or pretended consumption of official time, should become a source of factitious delay, vexation, and expense—of a sort of secret litigation, though without the name.*
3. Procedure summary. A topic over and over again insisted on† is, that, except in the comparatively rare cases in which, by special causes, delay is rendered necessary, all judicature is unjust, that is not summary. But on this occasion, a special demand for summary procedure is created by divers circumstances. To trace out, and secure for the purpose of justiciability, the forthcomingness of the forgerer,—investigation, a process not performable under any other than summary (i. e. natural) procedure, will frequently be necessary.
Regular or technical procedure being (in nine out of ten cases individually taken) as inapplicable to the purpose of honest litigants, as it is, and was intended to be, favourable to the purpose of dishonest ones,—so in particular is it in this. A suit in equity is as inapposite in the character of a remedy for an honest plaintiff, as it is infallible in the character of an instrument for crushing an honest defendant, whose pecuniary circumstances are such as to disable him from resisting it.
4. Certainty and facility of conviction being afforded (as above) by the nature of the mode of procedure,—here, as elsewhere, the magnitude of the penalty might be rendered trifling in comparison with what it becomes necessary to make it where factitious uncertainty, combined with the burthen of factitious delay and expense imposed on injured prosecutors, holds out invitation to delinquency.
The shame of conviction, with the addition of the expense necessary to give it adequate publicity (the expense of prosecution having nothing factitious added to it, and the prosecutor being indemnified for his share of it,) would be sufficient. Ordinary forgerers are almost always, in respect of pecuniary circumstances, irresponsible: hence the pretence, and in some measure the necessity, for the rigour of the punishment in that case. Forgerers of this description are scarce ever, in the same respect, otherwise than responsible: sufficiently responsible, in respect of costs and penalty, as above.
Forgerer. “But my wares are in fact, nothing inferior to the goods made by that man whose name gives him a monopoly as against me. This artifice is therefore an innocent one, and without which I could never hope to give myself a fair and equal chance.”
Legislator. “If your goods are no better than his, no injury is done to you: the same chance which has befriended him, might have befriended, and may at any time befriend, you.
“If you goods become better, or, under the same goodness, cheaper, sooner or later customers will find out your superiority as they found out his: and then the tables will be turned in your favour, and you will be the monopolist. Bestir yourself.
“Your wares, you say, are as good as his: but how am I to be satisfied of their being so? The evidence of customers—an impartial lot of evidence—is, by your own showing, against you: what have you to oppose to it?
“In your instance (you say) the forgerer’s wares are as good as the wares of the man of established skill and reputation, whose name, or what is equivalent, he forges. Be it so. But how many will there not be whose wares are inferior! and the worse the wares, the greater the profit;—the stronger, therefore, the inducement to the forgery, and therefore the probable number of the forgerers.
“You and your more successful rival have, in my regard, no higher place the one than the other: my favour would lean rather on the side of customers, as being more numerous than makers. By favouring that state of things which holds out to each of you the best chance of a reward proportioned to his real merits, I excite each of you to exert his utmost to win the prize: and the greater your merits—the better the goods at the same price—thence the greater the advantage, the ever increasing advantage, to the people at large, in quality of customers.”*
END OF VOLUME VI.
[* ]Note, that the formation of an obligatory rule of action, whether law or legalized contract, is itself a matter of fact requiring to be established by evidence, as well as the existence of any of those legally operative facts which derive their operation from laws or legalized contracts.
[† ]If, for three pounds, the price agreed on, payable the first day of next year, a tailor makes for a customer a coat of a certain description, and delivers it to him; here may be seen a conveyance, coupled with an agreement obligatory. The whole contract, if such were the usage and it were worth while, might stand (as it would stand, if, instead of a coat, the subject-matter were a house) expressed in and by an instrument of contract, an article of concurrent preappointed evidence, framed by one of the two contracting parties, and recognised by both of them. What is the usage is, that a memorandum of the contract should be entered in one or more of the tailor’s account-books, forming an article of ex parte preappointed evidence, admitted directly and constantly in French law, not unless indirectly and precariously in English.
[* ]The subject to which this distinction between total and partial spuriousness has its application, is rather the collection of signs of which the instrument is composed, than the practical effect: since, by the alteration or insertion of a single word in a genuine instrument, an effect as completely and extensively injurious is capable of being produced, as by the making of one which shall be altogether spurious.
[* ]Book II. Chap. VIII.
[† ]Authentication, viz. extrajudicial: such being the occasion on which the operation is here considered as being performed. Judicial authentication forms the subject of another Book.
[‡ ]Modes of authentication ab intrà:—1. Holography; 2. Signature (onomastic or symbolic;) 3. Oral recognition; 4. Recognition by deportment. See Chap. II.
[* ]Were it not for this, the signature of an attesting witness might be applied to the instrument at any posterior point of time.
[† ]Vide infrà, Chap. VI.
[* ]Authentication, whether ab intra or ab extrà, and examination into competence, are operations which have no application but on the supposition of the existence of a person occupied in the production of expressions of will, of the number of those from which facts of the class here in question derive their effect and essence.
[† ]Vide infra, Chap. VIII.
[‡ ]Chap. I. § 3.
[* ]This last might perhaps without impropriety be struck out of the list of uses; since a tax on contracts, in whatever manner laid on, is either a law-tax—that is, a tax upon justice, which is perhaps the worst of all taxes,—or a tax upon the transfer of property, which is one of the worst, or both together.—Editor.
[† ]As when, for a horse known to be unsound, and no questions asked, the price of a sound one is received.
[* ]In the language of French law, a will written from beginning to end by the testator’s own hand is distinguished by the appellation of testament holographe.—[A similar phraseology is employed in Scotland, where a deed written and signed by the granter is termed “holograph.” Deeds of this kind are “privileged,” and as such are valid without attestation; but if not attested, they do not prove their own dates, against the claim of any one whose interest it is to hold them as executed of a different date from that which they bear.—Ed.]
[* ]In English practice, seriously mischievous. Under the fee-gathering system, judges, ever upon the watch for occasions of committing safe injustice, have extracted out of the absence of this useless ceremony, a pretence for applying the principle of nullification. Some instruments must have a seal—others will serve without it: more complication, more uncertainty: more disappointment and distress on the one part, more arbitary power and predatory opulence on the other.
[† ]It would be in the instance of a last will, if in the instance of any species of contract (and that only in one particular case, viz. that of holography,) that the requisition of an act of recognition, as distinct from scription, whether in the way of holography, or in the way of onomastic signature, would be of use. For, of a last will, as contradistinguished from a contract of every other description, it is a distinctive character, that the dispositions made by it are designed by law to remain to the last moment subject to the power of him by whom they were made. But of an instrument written in form of a will, and written by the testator himself, it may be said, that it appears not as yet whether what has been so written had received his ultimate determination; since, having written it to serve as a subject of consideration, it may have happened to him to have kept it by him in that view for any length of time. Some other act (it may be said)—some other act distinct from the mere act of writing it, is necessary to demonstrate that his mind is fixed.
[* ]What one should scarce have imagined à priori—what would scarcely have been worth mentioning had it not been for the experienced blindness of judges and legislators,—in the case of attestation and registration, a task altogether necessary to perform is that of subjecting to a close scrutiny, and distinguishing from every other fact, the face which is the true and proper subject of the testimony thus green—the fact which, upon the strength of such testimony, may with reason be taken for proved.
[† ]The same expression is employed in Scotland. There are several old statutes still in force, enjoining certain solemnities to be used in the execution of all deeds not “in re mercatoria,” under “pain of nullity.”—Ed.
[* ]In the case of a last will, the means adapted to this purpose will in some respects be seen to differ from the means adapted to every other species of contract. Those which will here be brought to view in the first place, must therefore be understood as not meant to apply in every particular to last wills. Those which are peculiar to this particular species of contract, will be brought afterwards to view under a separate head.
[* ]So also guardian-appointment paper, apprentice-binding paper, partnership-contract paper, fire-insurance paper, ship-insurance paper.
[† ]See Essay on the Promulgation of Laws, Vol. I. p. 155.
[‡ ]Such as names of the parties and other persons, as well as individual things spoken of; designation of times and places; where money is in question, designation of the sum or sums.
[* ]Suppose (for instance) that, to the validity of a contract of the description in question, the presence of a professional assistant (such as a notary,) in the character of an attesting witness, be rendered necessary. It may be, that one of the parties is in a precarious state of health, or on the point of embarking for a long voyage on board a ship which cannot be detained. Three notaries, and no more, are so situated as to be within reach within the time: and of these, one is too sick to act, another is absent on a long journey, and the third, under the governance of some sinister interest, withholds his assistance. Meantime one of the parties dies, or, as above, expatriates.
[* ]English legislation has of late years exhibited a practice which accords exactly with the principle recommended in the text; viz. on the occasion of formalities, the substitution of instruction, to regulation on pain of nullity. By a fresh statute, fresh offences being created, cognizance of these offences is given to justices of the peace, one or more, judging in the way of natural procedure. For the expression of the judgment, in case of conviction, a formulary is provided; the use of it is authorized, but not on pain of nullity necessitated.
[* ]A regulation applicable to many useful purposes is this,—viz. that on every instrument of contract, the name, together with a sufficient description, of the writer,—the very individual by whose hand the characters are traced—be expressed.
[* ]It is in the character and by the description of notaries, that attorneys should on these occasions be spoken of. It is not in the character of attorneys, assistants in litigation, that their assistance is on these occasions required: on the contrary, to save the parties from the misfortune of being eventually obliged to have recourse to a man in the character of an attorney, is the very use and purpose of calling in his assistance in the character of a notary.
[† ]By way of an example of a sort of contract to which such professional intervention could not without great inconvenience be required, I will give the common bill of exchange, inland as well as foreign, in use among commercial hands. The delay and vexation of which an obligatory regulation to any such effect could not but be productive (not to speak of expense,) constitutes an objection so obvious and so peremptory, that the barest hint of it may suffice.
[* ]Take for instance the case of marriage. Prior marriage undissolved,—relationship too near,—age absolutely immature,—age immature for want of consent of guardians:—of all these four causes of incapacity to the contract, the non-existence may perhaps be sufficiently established by appositely worded and sufficiently sanctioned declarations. But in the case of three others—viz. undue coercion, fraud, and insanity—the insufficiency of declarations is obvious. Of any of these causes of incapacitation, should any suspicion in this or that individual instance arise, it is only by particular interrogatories adapted to the circumstances of the individual case, that such suspicion will be capable of being confirmed or done away.
[* ]The principle of distribution here proposed, in which regulation and notification are virtually included, is but an application of the more comprehensive principle,—viz. that all judicature should have previous regulation for its basis, and that regulation effectually notified: in other words, that regulation and notification should everywhere precede judicature: that no man should, on the score of punishment, or on any other score, be made to suffer for not having conformed to a regulation or rule of law, real or imaginary, of the existence of which, supposing it to exist, no means of informing himself had ever been presented to his notice.
[* ]In Scotland, a parochial clergyman may act as a notary in executing a will.—Ed.
[* ]At any rate, by the law of Scotland. [By the law of Scotland, a will, technically speaking, may be made on deathbed. An alienation of the heritable or real property, however (which cannot be disposed of by will,) is reducible at the instance of the heir-at-law, if made on deathbed. See above, p. 66.—Ed.]
[* ]Reference is made in this and in subsequent pages, to the state of the law of England with regard to wills at the time when the work was published. The distinction between real and personal property, with regard to testamentary attestation, has been, since that time, abolished by 7 Wil. IV. & 1 Vict. c. 26 (3d July 1837.) By that act, all wills must be in writing, and “signed at the foot or end thereof by the testator, or by some other person in his presence, and by his direction; and such signature shall be made or acknowledged by the testator, in the presence of two or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary.” The act does not extend to the wills of soldiers, nor to those of sailors and marines in the navy, which are regulated by 11 Geo. IV. & 1 Wil. IV. c. 20.—Ed.
[† ]Two items, it is true, would still remain out of the reach of observation; viz. 1. The number of unfair or spurious wills prevented by the formalities from coming into execution; 2. The number of fair and genuine wills prevented by the same means from taking effect: for, by means of the formalities, fair and genuine wills actually made, may, in any number, have been prevented from making their appearance: since, when a will is seen and understood to be unprovided with the formalities, the observance of which has been rendered necessary to its validity, it is given up of course, and never can make its appearance in the character of a subject of contestation.
[‡ ]Nor is this the whole of the evil: for, in the account of fair and genuine wills prevented from taking effect, must be included the number prevented from coming into existence. In other words, to the number of wills of this description prevented from taking effect by want of knowledge of the necessity of the formalities, must be added the number prevented from coming into existence by want of power to comply with those formalities. The number of those which, not having been prevented from coming into existence, have been prevented from taking effect, are those that have been thus frustrated for want of knowledge: the number of those that have been prevented by the same formalities from coming into existence, has been the number of those that have been thus frustrated for want of power to comply with the formalities. A man who, knowing that writing is necessary to a will, is neither in a condition to write one himself, nor can, at the exigence, obtain the assistance of any other person who is able to write, will not attempt to make a will. A man who, knowing that three witnessess are necessary to attestation, cannot obtain the assistance of three persons in that character, and three competent ones, will not attempt to make a will. In the house in which I am writing this, some years ago, an only daughter, an heiress, being minded to add by her will to a scanty provision that had been made for her mother by the marriage settlement, a lawyer was sent, and a will drawn accordingly. Just as the pen was put for signature into the hand of the testatrix, she expired; and, with her, the intended provision.
[* ]Lord Camden, whose ruling passion was enmity to Lord Mansfield, and who with unprecedented acrimony disputed everything that in the above-quoted argument presented itself as disputable,—even Lord Camden does not dispute the matter of fact exhibited by that instructive experience. “The design of the statute,” he says, “was to prevent wills that ought not to be made, and it always operates silently by intestacy. I have no doubt,” continues he, (“for this assertion,” says he, “cannot be proved,) but that a thousand estates have been saved by this excellent provision. It is called a guard in theory only, whereas almost every delirious paralytic that is suffered to die intestate is preserved by this law, and gives testimony of its utility.” So far the noble and learned lawyer. Delirious paralytics, a thousand in number, preserved from imposition by this law! So far as it goes, a happy result indeed, if it be true. Happy, I mean, for the delirous paralytics whose property has happened to be in the shape of what is called real property—in that particular sort of shape for the designation of which the lawyers who have invented it have never yet employed or invented any distinctive name. But what becomes of so many other delirious paralytics in much greater abundance, whose property is in any other shape than this indescribable one; whose property is in the shape of moveables, or of that sort of property which, being as immoveable as it is possible for property to be, is spoken of and treated by lawyers as if it were moveable? In a word—of three delirious paralytics, worth £10,000 a-piece, the first in freehold houses, the second in leasehold houses, and the third in stock in trade,—what is there about the two last that should exclude them from the protection, whatever it may be, that is afforded by what his Lordship calls “this famous law, every line whereof, according to Lord Nottingham’s opinion, was worth a subsidy?”—Camden, p. 25.
[* ]For the explanation of these terms, see Dumont—“Traités de Legislation,” and Bentham—“Introduction to Morals and Legislation,” Vol I. of this collection.
[* ]Apply this to statutes as well as to wills. By a simple erratum, a clear expression might have been given to many an amendment, to which an always obscure and sometimes ambiguous expression has been given by a statute at large. The obscure and ambiguous has however been preferred to the clear. Why? Because, from the obscure and ambiguous form, more emolument in the shape of fees is extracted, than could with equal case be extracted from the clear and familiar form, by those on whom the choice of forms has depended.a
[* ]In the case of spuriousness pro parte, the danger is narrowed by the impracticability of the fraud to all persons other than the one or few who, in the interval between connexion and exhibition, in the individual case in question, can have had access to the will, with length of time and other facilities adequate to the purpose.
[* ]In fact, it would even then be increased more than cent. per cent. The greater the number of persons in whose power the supposed accomplice must put himself, by joining with them in the commission of the offence, the greater will evidently be his danger, and therefore the greater the difficulty of engaging him in the conspiracy.
[† ]Vide supra, p. 533, note *.
[* ]Chap. III. § 2.
[* ]If no symbolic attestation be visible on the face of the will, and this (in case of inability to write) be among the formalities required; in this case the omission cannot be accounted for without calling in the supposition of ignorance with regard to the recommendation of the formalities.
[† ]By the act 7 W. IV. & 1 Vict. c. 26, noticed above, p. 533, the 29 C. II. c. 3, so far as it has reference to wills, is repealed.—Ed.
[* ]See the estimates which by different writers have of late years, on the occasion of the property taxes, been made, of the value of the masses of property in different shapes: taking into account this circumstance, viz. the large proportion of immoveable property, which, in the sum of what is called real property, stands exempted (viz. by marriage and other settlements) from the operation of last wills.
[† ]To a man whose reason is in his own keeping, it is scarce necessary to observe, that the demand for formalities cannot be varied by the consideration of the shape in which the property happens to be invested: whether, for example, it consists principally of immoveable property, lands, leases, and so forth; or principally of moveable property, such as stock in trade; or of property called incorporeal, such as an annuity, which is neither immoveable nor moveable, but something between both. Still less, whether, having an immoveable mass for its subject-matter, the interest he has in it, being the same in substance, be expressed in the language of the law by one form of words or another. And, moreover, that, if power be given to a man to dispose in this way of a portion of his property without the regular formalities, that portion should be, not a fixed and absolute one, but a relative one, proportioned as near as may be to the circumstances of the parties.
[* ]See Chap. IV. § 3 & 4.
[* ]If the object of the author of this statute had been to create confusion, he could scarcely have pitched upon any more effectual means than he has done. He foresees nothing: he sees nothing but through a cloud. In § 19, in speaking of a word-or-mouth will, he began with the case where there has been no written will already in existence: and on that occasion he described the conditions on which he will allow it to stand good: the subject-matter being property in any shape but real. In § 22 he takes up the opposite case, that of the existence of a written will. In this case, shall a word-of-mouth will be good, or no? That, says he, depends upon the circumstances. Ask him what those circumstances are,—the first and principal one is, that it shall not be a word-of-mouth will, but a will in writing: it must be “in the life of the testator committed to writing, and after the writing thereof read unto the testator, and allowed by him, and proved to be so done by three witnesses at the least.” Allowed by him! But how? in what manner? In the same manner as in the case of land, or tenements, &c.? in the shape of real property, as under § 5 & 6? or in any and what different manner? Between the wording of the two clauses of the act—words employed to make provision for the same case—there is not the smallest connexion or analogy. That they should have been the work of the same hand, however unskilful, is morally impossible: they must have been the work of two different, though alike careless and thoughtless, hands. If in the one case it he required (as in § 5) that the will expressed in writing be subscribed by the three witnesses, why not require, in § 22, the same proof of privity in the other case? If the provision requiring the will to be read over to the testator in the case of the non-real estate be a necessary precaution, why not extend the benefit of it to real estates? Why, in the case of the real estate (§ 5,) insist upon three witnesses to attest the will, without saying how many of them there shall be to prove it; and at the same time, in the case of the non-real estate, insist upon three witnesses to prove the will (i. e. in case of contestation, to depose to the fairness of it) without saying whether there shall be any, and how many, to attest it?
[* ]Book IX. Exclusion.
[* ]This act is the 25th Geo. II. c. 6.a In the preamble to it may be seen an example of the sort of varnish with which, in English law more especially, the works of legislators, and in particular the works of lawyers in the way of legislation, are so constantly and diligently covered. From lawgivers so wise, what laws ever proceed but wise ones? But, of all marks of wisdom, what (according to the Spanish proverb) more abundant or genuine than doubts? As wisdom increases, doubts accordingly multiply. But, as there is a time for all things, so is there even for the removal of doubts: even of lawyers’ doubts. Beards are also marks of wisdom: yet neither is shaving without its use. Too good ever to be altered, neither this law nor any other can ever be too good to be explained. A wise and good provision is the provision now in hand; the provision which, for the validity of this and that sort of will, requires “three or four credible witnesses:” but doubts have arisen under it what witnesses are to be deemed legal witnesses: the object of the new act is therefore to “avoid” those doubts; or, in other words, to remove them. Such, then, was the pretended function of the act: not alteration, but pure interpretation. What is its real function? Not interpretation, but alteration. Mischief, flagrant mischief, had been experienced: the cause of it was, partly the work of the legislator, the act itself, by which (without any notice to testators) witnesses in such a number were rendered necessary to the validity of a will; partly the work of the judge, by which the testimony of the description of persons most likely to be called in to subscribe, had so rashly been excluded. What, then, does the act? It puts an end to what the judges used to do, and does what it was not in their power to do: it receives the testimony of the so appointed witness, but deprives him of his legacy.
[* ]The executioner of it, without much impropriety, might be termed the lawyer, and his dupe the legislator; who, satisfied in his own conscience of the fairness of it, puts it to death, because the testator neglected to comply with this or that requisition, the existence of which it had been rendered impossible for him to be apprized of—the knowledge of which had never travelled beyond the breast that hatched it: made, as the requisitions of jurisprudence are so often made, after the man who is punished for the non-observance of them was no longer in existence.
[* ]See the author’s further remarks on this subject in the Introduction to the Rationale of Evidence, Chap. XVI. supra, p. 72.
[* ]In the official establishment of the city of London there exists still one officer, the remembrancer, whose principal if not sole function originally consisted in the preserving in his memory the remembrance of such facts as it might happen to the city, in its corporate capacity, to have a special interest in bringing to view, especially in presenting to the cognizance of the superior authorities.
[* ]Thus, suppose an office belonging to the department or finance. An officer causes or permits the money lying at the disposal of the office to be applied to his own use, or to some other use not comprised in the number of the uses to which it was destined. From the same books, by which, had the application made of the money been proper, evidence of such proper application would have been presented,—evidence of the improper application in question may be deducible.
[† ]Of the official evidence of which the several public offices are the repositories or sources, the statistic use, as above described, is every now and then made, under the British constitution (though not to a degree of extent or constancy nearly sufficient,) by committees of one or other House of Parliament. Of this use, the operations of the House of Commons finance committee, of the years 1797 and 1798, affords the most extensive and efficient exemplification that is to be found in the history of the British or any other nation.
[* ]Hence, in a constitution such as the British, the danger attendant on placing in any situation of extensive power a person too nearly allied to the crown: the jus nocendi, which, by the necessity of onerously responsible co-operators, has been taken away from the monarch himself, is thus conferred upon his relative.
[* ]It would be an error, if, from what is said above, a conclusion were formed that there exists not any case in which government by bodies corporate or boards can be conducive to the legitimate ends of government. Where, in the conduct of the business of the department, neither extraordinary talent nor extraordinary exertion are necessary,—as where money is to be received, kept, and given out, according to directions given by other hands,—at the same time that misapplication of the money, if attempted, would be manifest, or easily detected,—there the force of the objections which apply to it in other cases is either done away altogether, or much diminished: and in so far as division of power is necessary to good government, the institution is indispensable.
[* ]These uses may, both of them, in a certain sense, be termed uses to the judge, the administrator of the department to which these offices belong: but, in this instance, the uses derived from them by the administrator do not come altogether so close to him as in other instances.
[* ]Thus, where the altercation is carried on in writing, the delivery of an instrument of demand on the plaintiff’s side will naturally have the effect of imposing on the defendant’s side the obligation of delivering an instrument of defence. On the other side, the having given to the other party notice of an intention to deliver in an instrument to this or that effect, will naturally have the effect of imposing on that same side the obligation of performing the operation in question in pursuance of such notice.
[* ]As to the Court of Exchequer, being a sort of motley court—one side of it a law side, the other an equity side,—it must, according to principle, be neither a court of record only, nor a court not of record only, but both together.
[† ]Lord Chief Baron Gilbert, in his Treatise on Evidence.
[* ]Since the first edition of the work was published, a general legislative system for the registration of births, deaths, and marriages in England, has been made by 6 & 7 W. IV. c. 86, amended by 7 Will. IV. & 1 Vict. c. 22. At the same time, a bill to establish a system somewhat similar in Scotland was laid before Parliament, but has not yet (August 1839) been carried through.—Ed.
[† ]In regard to contracts in general, and marriage-contracts in particular, distinguish between the registration of the contract itself (i. e. the instrument of contract, when there is one,) and the recordation of the naked fact of the entrance into a contract of the species in question, by or between the party or parties in question. One sort of office may be fittest for the one purpose, another for the other. In practice, the one incident may be constantly the subject of registration, the other seldom or never. In England, for twenty instances of marriages entered into and registered, there is not perhaps more than one, of a marriage-settlement (i. e. a marriage instrument of contract) entered into: nor, except in two or three counties, any one of a marriage-settlement registered.
[‡ ]This belongs to the head of real evidence. See Book V. Circumstantial.
[* ]Examples:—1. Recordation of a riot committed in his presence; and this evidence rendered sufficient of itself to ground a conviction pronounced by himself as judge.
[† ]Viz. in the character of commissioners for the taking depositions to be employed in a court of equity. The occasion on which the examiner (such is the denomination given to the collecting judge) is a permanent officer, is confined to the case where the place of examination lies within a small distance of the metropolis.
[‡ ]Of preappointed evidence of the description here in question,—viz. evidence of miscellaneous facts, received and extracted either antecedently to litigation, or antecedently to the time regularly appointed for the collection of the evidence,—the practice of the English equity courts affords two modifications.
[* ]Section 3.
[* ]Over and above making provision for the extraction and recordation of answers to questions such as the above, regulations to the following effect present themselves as conducive to the end in view:—
[* ]Securing the legality of the marriage is a collateral end, that might easily be attained by appropriate arrangements, whereof interrogation would be the principal instrument. But we are now considering, not what formalities ought to be observed on the occasion of entering into the contract, but what are the advantages derivable from the registration of it when concluded.
[† ]The statute above noticed (6 & 7 W. IV. c. 86) appoints the births, and deaths, as the facts for registration.—Ed.
[* ]Causes Célèbres.
[* ]An establishment of this sort has place in Scotland. Even in England, however inadequate the footing upon which it has been placed, it has had place, and for near a century, in the two most populous counties:—it has had place in Middlesex and Yorkshire: everywhere (though under the great disadvantages resulting from the form given to the originals) with universally acknowledged good effect. Scotchmen would accordingly not be wanting who would stand up—stand up in Middlesex, and, in the instance of this as of any other obstacle attempted to be opposed to high-seated improbity, pronounce it mischievous, and certify it to be impracticable.
[† ]See Chap. II. § 1.
[* ]See “Outline of a Plan for a General Register of Real Property,” communicated by the author to the Real Property Commissioners, supra, Vol. V. p. 417.
[† ]By the exertions of modern ingenuity, three or four different inventions have been produced, by any one of which, error, as between exemplar and exemplar of the same script, is rendered impossible.
[* ]Provided always (as was observed in Chap. III.) that sufficient means have been taken for making it perfectly certain, that no person who can ever have occasion to enter into any of the sorts of contract in question, shall be unapprized of the necessity of obtaining the assistance of a notary.
[* ]The produce of the copying apparatus already spoken of.
[† ]In Scotland, enrolment in the register of sasines constitutes a title to land, with which no unenrolled title can interfere; and enrolled or recorded titles have precedence according to the date of their presentation to the registrar. The person who first produces his instrument of sasine for enrolment, is thus preferable to a prior purchaser. The instrument of sasine is the notarial record of the act of taking sasine or infeftment on the land, which is ineffectual unless the instrument be presented to the registrar within sixty days after the ceremony.—Ed.
[‡ ]By the convexity and inequality of the earth’s surface, difficulties will be produced respecting the adjustment of the mensuration of the minute portions liable to become the subject of legal contracts, to the mensuration of the whole. But, by geometricians, by whom the nature of these difficulties is understood, the means of obviating and surmounting them to a degree sufficient for practice will also be understood.a
[∥ ]Under the fee-gathering system, in English practice,—uncertainty, not certainty, being the real end of judicature,—in the instrument of demand (the declaration in the action of ejectment,) not so much as an approximation towards the description of the quantity really in dispute is attempted. The judgment having no other basis than the instrument of demand, no information respecting quantity is afforded by what is called the record, in which the declaration and judgment are compared. When the judgment is in favour of the plaintiff possession is given—not by the judge to the plaintiff—but by the plaintiff, with the privity and assistance of the sheriff (who on this occasion acts under the authority of, but without any directions from the judge,)—by the plaintiff, at his own peril, to himself.
[* ]In Scotland by the system of registration above alluded to (p. 579, note †,) no mortgage or heritable burden can be made real without registration.—Ed.
[† ]Book V. Circumstantial, Chap. III.
[* ]38 Geo. III. c. 38. § 28.
[* ]By the act which gives a copyright in designs for manufacture for a year, and in designs of castings, embossments, &c. for three years (2 & 3. Vict. c. 17.) a system of registration is appointed, and each article of manufacture, to entitle it to the protection of the act must have on it the name of the registered proprietor, the number on the register, and the date of registration.—Ed.
[† ]See Scotch Reform, Letter 2 (Vol. V.); and Book VIII. of the present work.
[* ]By the Letters-Patent amendment act, 5 & 6 Wil. IV. c. 83, a person forging the name of a patentee, for the purpose of making goods pass off as his patent commodity, is liable to a penalty of £50 (§ 7.)—Ed.
[* ]Apply this to statutes as well as to wills. By a simple erratum, a clear expression might have been given to many an amendment, to which an always obscure and sometimes ambiguous expression has been given by a statute at large. The obscure and ambiguous has however been preferred to the clear. Why? Because, from the obscure and ambiguous form, more emolument in the shape of fees is extracted, than could with equal case be extracted from the clear and familiar form, by those on whom the choice of forms has depended.a
[* ]This act is the 25th Geo. II. c. 6.a In the preamble to it may be seen an example of the sort of varnish with which, in English law more especially, the works of legislators, and in particular the works of lawyers in the way of legislation, are so constantly and diligently covered. From lawgivers so wise, what laws ever proceed but wise ones? But, of all marks of wisdom, what (according to the Spanish proverb) more abundant or genuine than doubts? As wisdom increases, doubts accordingly multiply. But, as there is a time for all things, so is there even for the removal of doubts: even of lawyers’ doubts. Beards are also marks of wisdom: yet neither is shaving without its use. Too good ever to be altered, neither this law nor any other can ever be too good to be explained. A wise and good provision is the provision now in hand; the provision which, for the validity of this and that sort of will, requires “three or four credible witnesses:” but doubts have arisen under it what witnesses are to be deemed legal witnesses: the object of the new act is therefore to “avoid” those doubts; or, in other words, to remove them. Such, then, was the pretended function of the act: not alteration, but pure interpretation. What is its real function? Not interpretation, but alteration. Mischief, flagrant mischief, had been experienced: the cause of it was, partly the work of the legislator, the act itself, by which (without any notice to testators) witnesses in such a number were rendered necessary to the validity of a will; partly the work of the judge, by which the testimony of the description of persons most likely to be called in to subscribe, had so rashly been excluded. What, then, does the act? It puts an end to what the judges used to do, and does what it was not in their power to do: it receives the testimony of the so appointed witness, but deprives him of his legacy.
[* ]Over and above making provision for the extraction and recordation of answers to questions such as the above, regulations to the following effect present themselves as conducive to the end in view:—
[† ]By the exertions of modern ingenuity, three or four different inventions have been produced, by any one of which, error, as between exemplar and exemplar of the same script, is rendered impossible.
[‡ ]By the convexity and inequality of the earth’s surface, difficulties will be produced respecting the adjustment of the mensuration of the minute portions liable to become the subject of legal contracts, to the mensuration of the whole. But, by geometricians, by whom the nature of these difficulties is understood, the means of obviating and surmounting them to a degree sufficient for practice will also be understood.a
[a]See “Nomography, or the art of inditing Laws,” Vol. III. p. 231.
[a]This act is repealed, except as to the colonies, by 7 W. IV. and 1 Vict. c. 26.—Ed.
[a]By the act above noticed (6 & 7 W. IV. c. 86) there is a penalty, not exceeding £10, exigible from any one who buries, or performs funeral service over a dead body, without a certificate of registry, unless he give information to the registrar within seven days (§ 27.)—Ed.
[a]See this subject further discussed, supra, Vol. V. p. 406.
[a]See above, Vol. V. p. 428.
[a]Fines and recoveries are abolished by 3 & 4 W. IV. c. 74.—Ed.