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• Rationale of Judicial Evidence.
• Book V.: —of Circumstantial Evidence.
• Chapter I.: Circumstantial Evidence, What—how Distinguished From Direct Evidence.
• Chapter II.: Of Probabilizing, Disprobabilizing, and Infirmative Facts—examples of Principal Facts, With the Corresponding Evidentiary Facts—improbability and Impossibility, How Distinguished From the Other Kinds of Circumstantial Evidence.
• Chapter III.: Of Real Evidence, Or Evidence From Things.
• Chapter IV.: Of Preparations, Attempts, Declarations of Intention, and Thrlats, Considered As Affording Evidence of Delinquency.
• Chapter V.: Of Non-responsion, and False, Or Evasive Responsion, Considered As Affording Evidence of Delinquency.
• Chapter VI.: Of Spontaneous * Self-inculpative Testimony, Considered As Affording Evidence of Delinquency.
• Chapter VII.: Of Confessorial and Otherwise Self-disserving Evidence, Extracted By Interrogation.
• Chapter VIII.: Of Confusion of Mind, Considered As Affording Evidence of Delinquency.
• Chapter IX.: Of Fear, In So Far As Indicated By Passive Deportment, Considered As Affording Evidence of Delinquency.
• Chapter X.: Of Clandestinity, Considered As Affording Evidence of Delinquency.
• Chapter XI.: Of Suppression Or Fabrication of Evidence, Considered As Affording Evidence of Delinqufncy.
• Chapter XII.: Of Avoidance of Justiciability, Considered As Affording Evidence of Delinquency.
• Chapter XIII.: Of the Situation of the Supposed Delinquent In Respect of Motives, Means, Disposition, Character, and Station In Life, Considered As Affording Evidence of Delinquency.
• Chapter XIV.: Posteriora Priorum—priora Posteriorum. Fact Indicated, a Prior Event; Evidentiary Fact, a Posterior Event In the Same Series: and E Converso.
• Chapter XV.: On the Probative Force of Circumstantial Evidence.
• Chapter XVI.: Of Improbability and Impossibility. *
• Chapter XVII.: Atrocity of an Alleged Offence, How Far a Ground of Incredibility. ‡
• Book VI: Of Makeshift Evidence.
• Chapter I.: Of Makeshift Evidence In General.
• Chapter II.: Of Extrajudicially Written Evidence.
• Chapter III.: Of Unoriginal Evidence In General.
• Chapter IV.: Of Supposed Oral Evidence Transmitted Through Oral, Or Hearsay Evidence.
• Chapter V.: Instructions Concerning the Probative Force of Extrajudicially Written and Hearsay Evidence. *
• Chapter VI.: Of Supposed Written Evidence, Transmitted Through Oral; Or Memoriter Evidence. *
• Chapter VII.: Of Supposed Oral Evidence, Transmitted Through Written; Or Minuted Evidence.
• Chapter VIII.: Of Supposed Written Evidence, Transmitted Through Written; Or Transcriptitious Evidence.
• Chapter IX.: Of Reported Real Evidence: I. E. Supposed Real Evidence, Transmitted Through Oral Judicial Testimony, Or Through Casually-written Evidence.
• Chapter X.: Of Evidence Transmitted Through an Indefinite Number of Media.
• Chapter XI.: What Ought, and What Ought Not, to Be Done, to Obviate the Danger of Misdecision On the Ground of Makeshift Evidence.
• Chapter XII.: Aberrations of English Law In Regard to Makeshift Evidence.
• Book VII.: Of the Authentication of Evidence.
• Chapter I.: Authentication, What. Connexion of This Subject With That of Preappointed Evidence.
• Chapter II.: Subject-matters of Authentication, What. Modes of Authentication In the Case of Real and of Oral Evidence.
• Chapter III.: Modes of Authentication In the Case of Written Evidence.
• Chapter IV.: Modes of Deauthentication In the Case of Written Evidence.
• Chapter V.: Distinction Between Provisional and Definitive Authentication. Rules For the Legislator and the Judge, Concerning the Authentication of Written Evidence.
• Chapter VI.: Aberrations of English Law In Regard to the Authentication of Written Evidence.
• Book VIII.: On the Cause of Exclusion of Evidence—the Technical System of Procedure.
• Chapter I.: Object of This Inquiry—its Connexion With the Subject of the Present Work.
• Chapter II.: Technical Or Fee-gathering, and Natural Or Domestic, Systems of Procedure, What?
• Chapter III.: Cause of the Vices of Technical Procedure, the Sinister Interest of the Judge.
• Chapter IV.: Particular Exemplifications of the Vices Introduced By the Fee-gathering Principle Into Technical Judicature.
• Chapter V.: List of the Devices Employed Under the Fee-gathering System, For Promoting the Ends of Established Judicature, At the Expense of the Ends of Justice. *
• Chapter VI.: First Device—exclusion of the Parties From the Presence of the Judge.
• Chapter VII.: Second Device—tribunals Out of Reach: Or, Swallowing Up the Inferior Courts.
• Chapter VIII.: Third Device—bandying the Cause From Court to Court.
• Chapter IX.: Fourth Device—blind Fixation of Times For the Oplrations of Procedure.
• Chapter X.: Fifth Device—sitting At Long Intervals.
• Chapter XI.: Sixth Device—motion Business.
• Chapter XII.: Seventh Device,—decision Without Thought; Or Mechanical Judicature.
• Chapter XIII.: Eighth Device—chicaneries About Notice.
• Chapter XIV.: Ninth Device—principll of Nullification.
• Chapter XV.: Tenth Device—mendacity-licence.
• Chapter XVI.: Eleventh Device—ready Written Pleadings.
• Chapter XVII.: Twelfth Device—principle of Jargon, Or Jargonization.
• Chapter XVIII.: Thirteenth Device—fiction.
• Chapter XIX.: Fourteenth Device—entanglement of Jurisdictions.
• Chapter XX.: Fifteenth Device—means of Securing Forthcomingness, Uselessly Divfrsified.
• Chapter XXI.: Sixteenth Device—creation of Needless and Useless Offices.
• Chapter XXII.: Seventeenth Device—sham Pecuniary Checks to Delay, Vexation, and Expense.
• Chapter XXIII.: Eighteenth Device—double-fountain Principle.
• Chapter XXIV.: Nineteenth Device—laudation of Jurisprudential Law.
• Chapter XXV.: Habitual Contempt Shown By Judges to the Authority of the Legislature.
• Chapter XXVI.: Opinion-trade.
• Chapter XXVII.: Extension of the Above Devices to Substantive Law, As Far As Applicable.
• Chapter XXVIII.: Remedies Suggested For the Above Evils.
• Chapter XXIX.: Apology For the Above Exposure.
• Book IX.: On Exclusion of Evidence.
• Part I.: On the Exclusionary System In General.
• Chapter I.: Exclusion of Evidence. Its Connexion With the Ends of Justice.
• Chapter II.: Disregard Shown to the Ends of Justice Under the Exclusionary System.
• Chapter III.: General View of the Mischiefs of the Exclusionary System.
• Chapter IV.: Dicta of Judges On the Exclusionary System.
• Chapter V.: Species of Exclusion.
• Part II.: View of the Cases In Which Exclusion of Evidence Is Proper.
• Chapter I.: General View of the Cases In Which Exclusion Is Proper.
• Chapter II.: Exclusion On the Ground of Vexation, In What Cases Proper.
• Chapter III.: Exclusion On the Ground of Expense, In What Cases Proper.
• Chapter IV.: Exclusion On the Ground of Delay, In What Cases Proper.
• Chapter V.: Exclusion of Irrelevant Evidence, Proper.
• Chapter VI.: Exclusion of the Evidence of a Catholic Priest, Respecting the Confessions Intrusted to Him, Proper.
• Chapter VII.: Remedies Succedaneous to the Exclusion of Evidence.
• Part III.: View of the Cases In Which Evidence Has Improperly Been Excluded On the Ground of Danger of Deception. *
• Chapter I.: Cases Enumerated.
• Chapter II.: Danger of Deception, Not a Proper Ground For Exclusion of Evidence.
• Chapter III.: Impropriety of Exclusion On the Ground of Interest.
• Chapter IV.: Impropriety of Exclusion On the Ground of Improbity.
• Chapter V.: Impropriety of Exclusion On the Ground of Religious Opinions.
• Chapter VI.: Impropriety of Exclusion On the Ground of Mlntal Imbecility, and Particularly of Infancy and Superannuation.
• Chapter VII.: Of the Restoratives For Competency, Devised By English Lawyers.
• Part IV.: View of the Cases In Which Evidence Has Improperly Been Excluded On the Ground of Vexation.
• Chapter I.: Vexation to Individuals Arising Solely Out of the Execution of the Laws, Not a Proper Ground of Exclusion.
• Chapter II.: Enumeration of the Sorts of Evidence Improperly Excluded On This Ground By English Law.
• Chapter III.: Impropriety of the Exclusion Put Upon Self-disserving Evidence By English Law.
• Chapter IV.: Inconsistencies of English Law In Regard to Self-disserving Evidence.
• Chapter V.: Examination of the Cases In Which English Law Exempts One Person From Giving Evidence Against Another.
• Part V.: View of the Cases In Which Evidence Has Improperly Been Excluded On the Double Account of Vexation and Danger of Deception.
• Chapter I.: Impropriety of Excluding the Testimony of a Party to the Cause, For Or Against Himself.
• Chapter II.: Examination of the Course Pursued In Regard to the Plaintiff’s Testimony By English Law.
• Chapter III.: Examination of the Course Pursued In Regard to the Defendant’s Testimony By English Law.
• Chapter IV.: Impropriety of Excluding the Testimony of a Party to the Cause, For Or Against Another Party On the Same Side. Examination of the Course Pursued In This Respect By English Law.
• Chapter V.: Probable Origin of the Above Exclusionary Rules.
• Part VI.: Of Disguised Exclusions.
• Chapter I.: Exclusion of Evidence For Want of Multiplicity.
• Chapter II.: Exclusion By Limitation Put Upon the Number of Witnesses.
• Chapter III.: Exclusion Put By Blind Arrangements of Procedure Upon Indeterminate Portions of the Mass of Evidence.
• Chapter IV.: Exclusion By Rendering a Particular Species of Evidence Conclusive.
• Chapter V.: Of the Rule, That Evidence Is to Be Confined to the Points In Issue. ‡
• Chapter VI.: Of Negative Exclusions.
• Book X.: Instructions to Be Delivered From the Legislator to the Judge, For the Estimation of the Probative Force of Evidence.
• Chapter I.: Preliminary Observations.
• Chapter II.: Of Interest In General, Considered As a Ground of Untrustworthiness In Testimony.
• Chapter III.: Of Pecuniary Interest, Considered As a Ground of Untrustworthiness In Testimony. *
• Chapter IV.: Of Interest Derived From Social Connexions In General.
• Chapter V.: Of Interest Derived From Sexual Connexions.
• Chapter VI.: Of Interest Derived From Situation With Respect to the Cause Or Suit.
• Chapter VII.: Of Improbity, Considered As a Cause of Untrustworthiness In Testimony.
• Chapter VIII.: Of the Comparative Mischief In the Event of Misdecision, to the Prejudice of the Plaintiff’s Or of the Defendant’s Side.
• Chapter IX.: Ulterior Safeguards Against the Inconveniencies Which May Present Themselves As Liable to Arise From the Abolition of the Exclusionary Rules.
• Chapter X.: Recapitulation.
• Conclusion.
• Note On the Belgic Code.

CHAPTER XII.

OF AVOIDANCE OF JUSTICIABILITY, CONSIDERED AS AFFORDING EVIDENCE OF DELINQUENCY.

On the part of the supposed delinquent, the acts or modes of conduct immediately directed to the production of this effect may be this enumerated:—

1. Expatriation: migration into the dominion of some foreign state; viz. of some foreign state in which, at the instance of the judicatory in question, justiciability on the part of the supposed delinquent will not (it is supposed) in the case in question be enforced.

2. Exprovinciation: migration into another juridical district within the dominion of the same state; viz. in so far as such change of place is regarded as being, definitively or for a time, productive of the like effect.*

3. Latency: the supposed delinquent being so circumstanced as that means whereby he may be found, as well as the spot where he is, are unknown; viz. to him who, in the character of judge, or in that of prosecutor, is desirous of causing his person to be forthcoming, for the purpose of his being justiciable.

4. Latitancy: i. e. where the non-forthcomingness of the supposed delinquent is clearly understood to have the avoidance of justiciability for its cause.

5. Eloignment of property: i. e. by expatriation, exprovinciation, transfer into other hands, or concealment.

6. Tampering with any person, on whom, in whatever character, ex. gr. in that of minister of justice, permanent or occasional, superordinate or subordinate (prosecutor, in the case of an offence considered as being of a public nature, included,) his justiciability may depend.*

The several special inculpative circumstances comprised under this more general head being all of them indicative of fear—fear having its source and object in the power of the law,—the infirmative counter-probabilities applying to this case are pro tanto the same as those which apply to that.

In the case of the four that consist in so many expedients employed or supposed for the avoidance of personal forthcomingness, the infirmative consideration already above designated by the phrase contemplation of juridical vexation notwithstanding innocence, operates with peculiar force.

A circumstance that demands attention, with an immediate view to practice, is, that this force will of course undergo variation, according to the nature of the system of procedure—according to the mode and the degree in which it is subservient or adverse to the several ends of justice.

The exculpative force of this infirmative counter-probability will be the greater—in other words, the probative force of the criminative circumstance constituted by avoidance of justiciability by eloignment or concealment of person will be the less—the greater (for example) the vexatiousness or the length of the imprisonment to which, by accusation or suspicion of the offence in question, a man stands exposed: understand provisional imprisonment (in technical language imprisonment on mesne process,) so circumstanced that the innocent as well as the guilty stand exposed to it† .

Other differences might be cited, by which the determination, whether to abide or not to abide the course of penal procedure, could not but be more or less affected: the severity of punishment, and the severity of the process employed for the extraction of evidence. In France, while breaking on the wheel and other excruciating modes of capital punishment were in use, the hazard attending such abidance could not but present itself as considerably greater, and consequently the inference from flight to delinquency considerably less cogent, than at present, when simple death is the highest degree in the scale: and another, and perhaps still greater, difference, could not but be attached to the useless barbarity of preparatory torture.*

Health—business—pleasure,—by any one of these objects of pursuit may a man be engaged in a plan of expatriation, exprovinciation, or eloignment of property: by pursuit of pleasure, possibly even by pursuit of business, he may be engaged in a plan of latency: here there are so many infirmative counter-probabilities operating in diminution of the probative force of the four circumstances in question, in the character of evidences of fear of the hand of law, and thence as evidences of delinquency.

In a word, under one or other of these three modifications the ordinary pursuits of mankind in general being comprehended, the consequence in regard to the circumstances in question is, that, considered in themselves, and independently of every other circumstance of a criminative tendency, they can scarcely be considered, even putting all of them together, as operating with any perceptible degree of criminative force.

The presumption afforded of delinquency by any one of these changes will be the stronger, the greater the deviation it makes from the course of life habitually pursued by the supposed delinquent.

In the case of a mariner, a carrier, an itinerant vender, or an itinerant handicraft, it may amount to nothing: in other words, the disprobative force of the infirmative counter-probability denoted by the expression pursuit of business, may be so great as to reduce to nothing the probative force of the criminative circumstance or circumstances in question,—viz. expatriation, exprovinciation, eloignment of property, or latency,—any one or more of them.

In case of real delinquency,—expatriation, exprovinciation, or eloignment of property, one or more of them, are apt to be accompanied with the circumstance of clandestinity; and (for the purpose of clandestinity) with mendacious extra-judicial discourse, having for its object the preventing or removing, on the part of any persons on whose part inculpative testimony is apprehended, all suspicion of the true cause.

That, by the concurrence of any such other criminative circumstances, the criminative force of the circumstances here in question cannot but receive considerable increase, is altogether obvious.

But it does not follow that, by the mere non-appearance of these confirmative circumstances, the criminative force of the circumstances here in question must be altogether destroyed; since it may happen, that—the change of place in question having been already determined upon, in pursuit of business, health, or pleasure—advantage may have been taken of the means thus afforded for the avoidance of justiciability, and, under favour of the promise of impunity thus entertained, the crime in question may have been committed.

As to tampering with prosecutors and other ministers of justice; to an act of this description, considered in the light of a criminative circumstance, the same suppositions apply in the character of infirmative counter-probabilities, as have been seen applying in the case where the persons thus practised upon are considered in the character of witnesses.

Expatriation, exprovinciation, and eloignment of property, involve in each instance the necessary supposition of intentional agency, positive or negative, but in general positive, on the part of the supposed delinquent himself. In latency, on the other hand, no such supposition is necessarily involved: what it designates is the effect—not any act by or by the help of which the effect is produced.

Latency—though it does not necessarily import, on the part of the supposed delinquent, any act done by him in the view of producing the effects designated by it—is, in respect of its criminative force, subject to the operation of the same counter-probabilities as those which apply to the other criminative circumstances which do, on his part, import action: since, like any of them, it may be the result of a man’s ordinary and blameless pursuits.

By the word latency, nothing more can be designated than the state of him in whose instance no means of communicating with him, either through the medium of his place of abode or otherwise, is known to those to whom such knowledge is necessary to enable them to insure his forthcomingness for the purpose of justiciability.

But in whose conduct is the cause of this want of knowledge to be found?

Till this point be settled, the condition denoted by the word latency can scarcely, with propriety, be placed upon the list of criminative circumstances.

The means of communicating with an individual (i. e. the means the best adapted to that purpose) can scarcely be brought under any general description: they will in every case be dependent on the individual circumstances in which, at the individual point of time, he happens to be placed. But it does not often happen that the means are deficient, or prove ineffectual, when, to the real desire, the power is added,—such power as it depends on the law to give.*

If it be really my wish to communicate with a man, to hear from him, and make him hear from me, what course do I take? The answer is almost too obvious to be called for: I make inquiry among his friends. Such is the course which everybody takes whose wish it is to succeed; and such is the course which it has been the care of English judges not to take.

Supposing powers adequate to the purpose given by the law, those powers accompanied with the correspondent obligations, and those obligations duly fulfilled; then it is, and not till then, that latency becomes presumptive evidence of latitancy, and through that of criminality: latitancy being understood to designate voluntary latency, having for its object the avoiding forthcomingness, for the purpose of avoiding justiciability.

Supposing the fact of latency established, and the fact of latitancy justly inferred from it; still, under the existing institutions, there exists a counter-probability by which its probative force in the character of a criminative circumstance is weakened. Fear, and fear of the law, would indeed be indicated; but the real evil apprehended at the hands of law might be, not the evil of punishment, inflicted under that name, on the score of criminality in any shape, but the evil of imprisonment, on the score of satisfaction for money due on an account not penal.

In so far as non-discharge of pecuniary debts, or other non-penal obligations, is considered as an offence, and non-surrender of a man’s person to imprisonment in satisfaction for the wrong done by the non-fulfilment of those obligations, is considered as an ulterior offence grounded on the former,—the engaging in a course of latitancy for the purpose of voiding such imprisonment may be considered as constituting the matter of the infirmative supposition above indicated under the title of design less culpable.

Suppose a prosecution actually commenced, and notice of its being so actually received by the supposed delinquent: on this supposition latency is actually converted into latitancy.

Notoriety of the obnoxious event, coupled with notoriety of popular suspicion fixing upon the supposed delinquent as having been concerned in the production of it;—these circumstances together will operate, of course, in the character of evidentiary facts, affording presumptive evidence of the information’s having reached his ears.

By habitual occupation, or by accident, he was in an itinerant state. He is illiterate, and the advertisements, if any have issued from the press, have not reached his eyes. The country is of the number of those which are not yet far enough advanced in the arts of life to render communications in that mode customary or easy. These may serve as examples of a variety of circumstances by which the probative force of simple latency, as evidentiary of latitancy, may be more or less impaired.

[* ]Considered as a means of avoiding justiciability, the effect of exprovinciation will be the greater, the greater the obstruction offered by it to the power of justice, whether by means of local distance, or by means of independency of jurisdiction.

Of the mode and degree of the obstruction thus capable of being opposed, the diversifications are infinite: particularly in modern times, since it has been a fashion among the powers of Europe to comprise each of them within its grasp the most distant parts of the globe.

The obstruction opposed by independency of jurisdiction, being a psychological cause, is removable: the obstruction opposed by local distance, a physical cause, is inexorable.

Accordingly, though in general the obstruction opposed by expatriation will be greater than by exprovinciation, yet, in some instances, that which is opposed by exprovinciation will be the greater. In the instance of some offences (forgery in particular, in which public credit all over the globe beholds an enemy,) the great European States, Britain not excepted, have surrendered each to the justice of the other its supposed delinquents. In so far as this disposition prevails, the obstruction given to the course of justice by expatriation—for example, from London to Calais or even to Paris—may not be so great as that opposed by exprovinciation from London to the Orkneys, or though it were no further than to Edinburgh; not to speak of the West or East Indies.

Person and property are not the only objects on which, for the purpose of securing effective justiciability, the law has it in its power to take hold. Over and above these corporeal objects, there remain two incorporeal ones. viz. reputation and condition in life, by means of which the feelings of individuals are exposed to be wrought upon by the force of the law, as well as by that of lawless injury.

But person and property are the only objects which it is ever in the power of an individual, in case of delinquency on his part, to withdraw out of the power of the law: in spite of his utmost efforts, reputation and condition in life continue subject to it.

Even in regard to property, the extent of the power which it depends on the individual to exercise over it, in spite of the law, or without its assistance, is subject to very extensive limitations. To immoveables it does not extend: nor even to money or moveables in any case where, his power depending upon the consent of other persons, that consent is withholden or refused. Hence the influence, in some cases irresistible, in others no more than ideal, of the judgment of outlawry;a by which, amongst other penal consequences, the defendant stands deprived in a considerable degree of that security for his property, which depends upon the protection that would be otherwise afforded him by the law.

[* ]Note here, that if, instead of any of the specific modes of designation here employed, the general expression (avoidance of justiciability) taken to serve as a title to this chapter, be employed, the inference in question is considered as already established.

In the case of each of these criminative circumstances, fear (viz. fear of the power of the law) is the relatively principal fact immediately indicated. Were they respectively present to the senses of the judge,—as are, in case of oral interrogation, the physical modifications of passive deportment which constitute the pathological evidence of that emotion, and the modifications of self-disserving testimony extractible by interrogation,—they would occupy the same station in the chain of suppositions. But, scarcely being in any instance so present, they cannot come to his cognizance but through the lips or pen of some deposing witness: by which means a fifth link is added to the evidentiary chain, as in case of any other inculpative fact considered as having been extra-judicially observed.

In this case, fear, and avoidance of justiciability, may, though not synonymous, be employed indiscriminately to represent the link in question in the chain of suppositions. It is only in so far as it is indicative of fear (fear of evil as about to be suffered from the hand of law,) that avoidance of justiciability can operate as a criminative circumstance: and, to weaken the inference thus drawn, no other infirmatives seem applicable than what have been already brought to view as serving to weaken the probative force of fear itself, considered in the light of a criminative circumstance.

[† ]Under the penal procedure of the Roman law, or, to speak more accurately, of the system which, before the Revolution, existed in France, the probative force of the inculpative circumstances of this class should accordingly, it should seem, be less than under the English.

For the purpose of computing the average duration of a penal suit, the collection of trials entitled Causes Celibres (thirty volumes in closely-printed 12mo) was examined. It was not in every instance that the duration of the suit could be ascertained: in the instance of those in which it was capable of being ascertained, the average duration turned out to be near six years. In these, it is true, the intricacy of the cause was above the ordinary pitch. But under English procedure it would be difficult, perhaps impossible, to find a penal cause, on the occasion of which, down to detinitive judgment, the provisional imprisonment had lasted a fourth part of that time.

In penal cases, the procedure of the Roman school does not admit of discharge on bail with near so much facility as the English.

In England, in a case not bailable, the criminative force of the circumstance in question may be calculated, and with some degree of precision, from geographical data. In the class of causes most highly penal, in London and Middlesex, justice is administered in about forty-eight days out of the three hundred and sixty-five; in the other counties, with the exception of the four northern ones, in about four out of the three hundred and sixty-five; and in these northern ones, in about two out of the three hundred and sixty-five.a

A supposed duellist, for example, who has killed his man, is in a state of expatriation, latency, or even latitancy. In London and Middlesex, the criminative force of any one of these symptoms of fear (the possible chance of being let out upon bail by the Court of King’s Bench, being laid out of the case as not capable of being brought into calculation) will be a little less than four times as great as in any other of the southern counties, a little less than eight times as great as in any one of those four northern counties.

[* ]How acutely sensible must a celebrated French lawyer have been to the defects of the system of procedure established in his country, when he said—“Je fuirais, si l’on m’accusait d’avoir roh les cloches de Notre Dame!” In such a state of things, it is evident, the infirmative force of the counter-probability which we have termed contemplation of judicial vexation notwithstanding innocence, is so strong as entirely to destroy the probative force of the circumstance of latitancy, considered as evidentiary of delinquency.

[* ]Unfortunately, under English law, no such suppositions are realized; a system of sham notices being among the devices whereby the ends of judicature are pursued, under the pretence of pursuing the ends of justice. On this as on so many other occasions, the inquiries which common sense would dictate, and common honesty pursue, legal policy forbids. Without any expense of thought, from latency latitancy is inferred, and from latitancy delinquency; and, though not absolutely without other evidence, yet, without any evidence of the nature of which it is possible for the supposed delinquent to be apprized. If a bill of indictment, after evidence heard thereon, is found true by a grand jury sworn to secrecy, a writ called a capias issues thereupon; and, in consequence of that writ, after a series of sham notices read by a man to himself in a private chamber, judgment of outlawry, in which conviction is included, is pronounced of course. [See p. 50, sub-note a.]

[* ]Considered as a means of avoiding justiciability, the effect of exprovinciation will be the greater, the greater the obstruction offered by it to the power of justice, whether by means of local distance, or by means of independency of jurisdiction.

Of the mode and degree of the obstruction thus capable of being opposed, the diversifications are infinite: particularly in modern times, since it has been a fashion among the powers of Europe to comprise each of them within its grasp the most distant parts of the globe.

The obstruction opposed by independency of jurisdiction, being a psychological cause, is removable: the obstruction opposed by local distance, a physical cause, is inexorable.

Accordingly, though in general the obstruction opposed by expatriation will be greater than by exprovinciation, yet, in some instances, that which is opposed by exprovinciation will be the greater. In the instance of some offences (forgery in particular, in which public credit all over the globe beholds an enemy,) the great European States, Britain not excepted, have surrendered each to the justice of the other its supposed delinquents. In so far as this disposition prevails, the obstruction given to the course of justice by expatriation—for example, from London to Calais or even to Paris—may not be so great as that opposed by exprovinciation from London to the Orkneys, or though it were no further than to Edinburgh; not to speak of the West or East Indies.

Person and property are not the only objects on which, for the purpose of securing effective justiciability, the law has it in its power to take hold. Over and above these corporeal objects, there remain two incorporeal ones. viz. reputation and condition in life, by means of which the feelings of individuals are exposed to be wrought upon by the force of the law, as well as by that of lawless injury.

But person and property are the only objects which it is ever in the power of an individual, in case of delinquency on his part, to withdraw out of the power of the law: in spite of his utmost efforts, reputation and condition in life continue subject to it.

Even in regard to property, the extent of the power which it depends on the individual to exercise over it, in spite of the law, or without its assistance, is subject to very extensive limitations. To immoveables it does not extend: nor even to money or moveables in any case where, his power depending upon the consent of other persons, that consent is withholden or refused. Hence the influence, in some cases irresistible, in others no more than ideal, of the judgment of outlawry;a by which, amongst other penal consequences, the defendant stands deprived in a considerable degree of that security for his property, which depends upon the protection that would be otherwise afforded him by the law.

[† ]Under the penal procedure of the Roman law, or, to speak more accurately, of the system which, before the Revolution, existed in France, the probative force of the inculpative circumstances of this class should accordingly, it should seem, be less than under the English.

For the purpose of computing the average duration of a penal suit, the collection of trials entitled Causes Celibres (thirty volumes in closely-printed 12mo) was examined. It was not in every instance that the duration of the suit could be ascertained: in the instance of those in which it was capable of being ascertained, the average duration turned out to be near six years. In these, it is true, the intricacy of the cause was above the ordinary pitch. But under English procedure it would be difficult, perhaps impossible, to find a penal cause, on the occasion of which, down to detinitive judgment, the provisional imprisonment had lasted a fourth part of that time.

In penal cases, the procedure of the Roman school does not admit of discharge on bail with near so much facility as the English.

In England, in a case not bailable, the criminative force of the circumstance in question may be calculated, and with some degree of precision, from geographical data. In the class of causes most highly penal, in London and Middlesex, justice is administered in about forty-eight days out of the three hundred and sixty-five; in the other counties, with the exception of the four northern ones, in about four out of the three hundred and sixty-five; and in these northern ones, in about two out of the three hundred and sixty-five.a

A supposed duellist, for example, who has killed his man, is in a state of expatriation, latency, or even latitancy. In London and Middlesex, the criminative force of any one of these symptoms of fear (the possible chance of being let out upon bail by the Court of King’s Bench, being laid out of the case as not capable of being brought into calculation) will be a little less than four times as great as in any other of the southern counties, a little less than eight times as great as in any one of those four northern counties.

[a ]If a defendant absconds after a writ of capias has been awarded, and certain formalities observed, he is proclaimed an outlaw, and is incapable of bringing actions: formerly his life was unprotected by the law, and he might have been killed with impunity by any one who met him. 4 Black. Com. 319. Judgment of outlawry for treason or felony, renders a man an incompetent witness in a court of justice; but outlawry in a personal action does not. 3 Inst. 212. Celier’s Case, Sir T. Raym, 369: Co. Lit. 6. b.

[a ]Some improvement has taken place in this matter since the above was written. The central criminal court, which has jurisdiction over London, Middlesex, and part of Surrey Kent and Essex, sits twelve times a-year; each session lasting, on an average, for about seven or eight days. The four northern counties are now placed in the same situation as the other counties;—that is, they are all visited twice a-year by the judges for the purpose of trying the class of causes referred to by the author, as well as civil actions.—Ed.