The Online Library of Liberty

A project of Liberty Fund, Inc.

• Errata—vol. VI. *
• An Introductory View of the Rationale of Evidence; For the Use of Non-lawyers As Well As Lawyers.
• Chapter I.: Title-page Justified.
• Chapter II.: Relation of Law to Happiness—of Procedure to the Main Body of the Law—of Evidence to Procedure.
• Chapter III.: Ends of Justice On the Occasion of Judicature. *
• Chapter IV.: Duties of the Legislator In Relation to Evidence.
• Chapter V.: Probative Force—whence Measured—how Increased—how Diminished.
• Chapter VI.: Degrees of Persuasion—thence of Probative Force—how Expressible.
• Chapter VII.: Causes of Trustworthiness and Untrustworthiness In Testimony—thence of Belief and Unbelief.
• Chapter VIII.: Of the Securities For Trustworthiness In Evidence.
• Chapter IX: False Securities For Trustworthiness In Evidence—oaths and Exclusions.
• Chapter X.: Of the Reception and Extraction of Evidence, Viz. With the Help of the Above Securities.
• Chapter XI.: Collection of Evidence—english Practice.
• Chapter XII.: Of Circumstantial Evidence.
• Chapter XIII.: Of Make-shift Evidence.
• Chapter XIV.: Of Preappointed Evidence.
• Chapter XV.: Difference Between Preappointed and Unpreappointed Evidence.
• Chapter XVI.: Preappointed Official Evidence.
• Chapter XVII.: Extempore Recordation, How Applicable to Legally Operative Facts At Large.
• Chapter XVIII.: Of Derivative, Including Transcriptious, Recordation, Wherein of Registration.
• Chapter XIX.: Exclusion of Evidence.—general Considerations.
• Chapter XX.: Exclusion Continued—causes For Which It Is Proper Or Not, According to Circumstances.
• Chapter XXI.: Exclusion Continued—causes For Which It Cannot Be Proper.
• Chapter XXII.: Exclusions By English and Other Laws—analytic and Synoptic Sketches.
• Chapter XXIII.: Safeguards Against Suspicious Evidence: Including Instructions Concerning the Weighing of Evidence.
• Chapter XXIV.: Authentication and Deauthentication, As Applied to Preappointed and Other Written Evidence.
• Chapter XXV.: Exclusion and Nullification Applied to Contractual Matter, In So Far As Writing Has Been Omitted to Be Employed In Giving Expression to It.
• Chapter XXVI.: Of the Exclusion and Nullification of Contractual Matter, Informally Though Scriptitiously Expressed, In a Transaction Which Has Been the Subject of Matter Formally Expressed.
• Chapter XXVII.: Imprisonment For Debt:—disguised Exclusion of Evidence Involved In It.
• Chapter XXVIII.: Of the Burthen of Proof: On Whom Shall It Lie?— (a Question Produced By Undue Exclusion of Evidence.)
• Chapter XXIX.: Evidence Considered In Its Relation to This Or That Fact In Particular—why Discarded From This Work.
• Chapter XXX.: Evidence In Relation to Particular Facts and Pleadings Under Technical Procldure.
• Chapter XXXI.: False Theory of Evidence (gilbert’s * )—its Foundation:—precedence Given to Written Before Unwritten.
• Chapter XXXII.: Liberalists and Rigorists—parties Belligerent In the Field of Jurisprudence, and In Particular of Evidence.
• Chapter XXXIII.: Conclusion.
• Appendix A.: Cautionary Instructions Respecting Evidence, For the Use of Judges.
• Chapter I.: Propriety of Cautionary Instructions, In Preference to Unbending Rules.
• Chapter II.: Considerations Proper to Be Borne In Mind In Judging of the Weight of Evidence.
• Chapter III.: Considerations Respecting the Effects of Interest In General Upon Evidence.
• Chapter IV.: Considerations Respecting the Effect of Pecuniary Interest Upon Evidence.
• Chapter V.: Situations.
• Chapter VI.: Makeshift Evidence.
• Chapter VII.: Scale of Trustworthiness.
• Chapter VIII.: Best Evidence, What?
• Chapter IX.: English Law Scale of Trustworthiness.
• Appendix B.: of Imprisonment For Debt.
• Section I.: Its Inaptitude As an Instrument of Compulsion.
• Section II.: Its Inaptitude, Applied As It Is As an Instrument of Punishment.
• Section III.: Its Needlessness Demonstrated By Experience.
• Section IV.: End, Or Final Cause of the Institution—judge and Co.’s Sinister Interest.
• Section V.: Means Employed—mendacity and Usurpation.
• Section VI.: Affidavit Previous to Arrest, Its Unfitness.
• Section VII.: Consequence of the Exclusion Thus Put Upon Evidence.
• Section VIII.: Advocates For the Abolition of Imprisonment For Debt—their Errors.
• Section IX.: Scotch Law—cessio Bonorum, Its Inadequacy.
• Section X.: Agenda—course Proper to Be Taken On the Occasion of Insolvency.
• Appendix C.: False Theory of Evidence—(gilbert’s.)
• Rationale of Judicial Evidence, Specially Applied to English Practice. From the Manuscripts of Jeremy Bentham, Bencher of Lincoln’s Inn.
• Preface.
• Prospective View.
• Book I.: —theoretic Grounds.
• Chapter I.: On Evidence In General.
• Chapter II.: Of Evidence Considered With Reference to a Legal Purpose; and of the Duties of the Legislator In Relation to Evidence.
• Chapter III.: Of Facts—the Subject-matter of Evidence.
• Chapter IV.: Of the Several Species Or Modifications of Evidence.
• Chapter V.: Of the Probative Force of Evidence.
• Chapter VI.: Degrees of Persuasion and Probative Force, How Measured.
• Chapter VII.: Of the Foundation Or Cause of Belief In Testimony.
• Chapter VIII.: Modes of Incorrectness In Testimony.
• Chapter IX.: General View of the Psychological Causes of Correctness and Completeness, With Their Contraries, Incorrectness and Incompleteness, In Testimony.
• Chapter X.: Of the Intellectual Causes of Correctness and Completeness In Testimony, With Their Opposites.
• Chapter XI.: Of the Moral Causes of Correctness and Completeness In Testimony, With Their Opposites.
• Chapter XII.: Ground of Persuasion In the Case of the Judge—can Decision On His Own Knowledge, Without Evidence From External Sources, Be Well Grounded?
• Book II.: —on the Securities For the Trustworthiness of Testimony.
• Chapter I.: Object of the Present Book.
• Chapter II.: Dangers to Be Guarded Against, In Regard to Testimony, By the Arrangements Suggested In This Book.
• Chapter III.: Internal and External Securities For the Trustworthiness of Testimony Enumerated.
• Chapter IV.: On the Internal Securities For Trustworthiness In Testimony.
• Chapter V.: Of Punishment, Considered As a Security For the Trustworthiness of Testimony.
• Chapter VI.: Of the Ceremony of an Oath, Considered As a Security For the Trustworthiness of Testimony.
• Chapter VII.: Of Shame, Considered As a Security For the Trustworthiness of Testimony.
• Chapter VIII.: Of Writing, Considered As a Security For the Trustworthiness of Testimony.
• Chapter IX.: Of Interrogation, Considered As a Security For the Trustworthiness of Testimony.
• Chapter X.: Of Publicity and Privacy, As Applied to Judicature In General, and to the Collection of the Evidence In Particular.
• Additional Notes to Books I. & II. Chiefly With Reference to Alterations Made In the Law Since the Date of the First Edition,— Viz. 1827.
• Book III.: Of the Extraction of Testimonial Evidence.
• Chapter I.: Of the Oral Mode of Interrogation.
• Chapter II.: Notes, Whether Consultable?
• Chapter III.: Of Suggestive Interrogation.
• Chapter IV.: Of Discreditive Interrogation.
• Chapter V.: Of the Demeanour of the Adverse Interrogator to the Witness, Considered In Respect of Vexation.
• Chapter VI.: Of the Notation and Recordation of Testimony.
• Chapter VII.: That the Evidence Should Be Collected By the Same Person By Whom the Decision Is to Be Pronounced.
• Chapter VIII.: Five Modes of Interrogation Compared.
• Chapter IX.: Epistolary Mode of Interrogation, In What Cases Applicable.
• Chapter X.: Epistolary Mode of Interrogation, How to Apply It to the Best Advantage.
• Chapter XI.: Helps to Recollection, How Far Compatible With Obstructions to Invention?
• Chapter XII.: Of Re-examination, Repetition, Or Recolement.
• Chapter XIII.: Of Spontaneous Or Uninterrogated Testimony.
• Chapter XIV.: General View of the Incongruities of English Law In Respect of the Extraction of Evidence.
• Chapter XV.: Mode of Extraction In English Common-law Procedure—its Incongruities.
• Chapter XVI.: Mode of Extraction In English Equity Procedure—its Incongruities.
• Chapter XVII.: Mode of Extraction In English Ecclesiastical and Admiralty Courts—its Incongruities.
• Chapter XVIII.: Incongruities of Roman Law In Respect of the Extraction of Evidence.
• Chapter XIX.: Of Confrontation Under the Roman Law.
• Chapter XX.: Recapitulation.
• Book IV.: Of Preappointed Evidence.
• Chapter I.: Of Preappointed Evidence In General.
• Chapter II.: Of Instruments of Contract In General.
• Chapter III.: Of the Enforcement of Formalities In the Case of Contracts.
• Chapter IV.: Formalities, What Proper, and In What Cases?
• Chapter V.: Of Wills, As Distinguished From Other Contracts.
• Chapter VI.: Of Preappointed Evidence, Considered As Applied to Laws.
• Chapter VII.: Of Public Offices At Large, Considered As Repositories and Sources of Preappointed Evidence. *
• Chapter VIII.: Of Official Evidence, As Furnished By Judicial Offices.
• Chapter IX.: Of Preappointed Evidence, Considered As Applied to Legally-operative Facts At Large.
• Chapter X.: Of the Registration of Genealogical Facts, Viz. Deaths, Births, and Marriages.
• Chapter XI.: Of Offices For Conservation of Transcripts of Contracts. *
• Chapter XII.: Of the Principle of Preappointed Evidence As Exemplified In the Case of Real Evidence (evidence From Things.)

CHAPTER III.

OF THE ENFORCEMENT OF FORMALITIES IN THE CASE OF CONTRACTS.

§ 1.

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.

§ 2.

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.

§ 3.

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.

[† ]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.

The practice thus recently observed by supreme authority, forms a pleasing and instructive contrast with the practice begun in barbarous ages, and still pursued by an authority which ought to be, though in effect it can scarce be said as yet to be, subordinate. The course taken in this behalf applies alike to contracts, and to operations or instruments of procedure.

A contract is produced: the judge pronounces it null and void. Why null and void? Because in the tenor of it, or in the mode of entering into it, the parties have failed to conform themselves to such rule, never yet made known—no, nor so much as made. First comes the arbitrarily-imputed and inevitable transgression: then, from the undivulgated description of the case in which transgression was thus calumniously imputed, and the party dealt with as if he had transgressed, distil off and catch up who can the imaginary rule.

As of a conqueror, so, under jurisprudential law, ruin thus marks the footsteps of the judge.

Regulation improperly substituted to instruction—will addressing itself to will, where understanding should have addressed itself to understanding—is, in government, one of the marks of primeval barbarism.