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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 V.

DISTINCTION BETWEEN PROVISIONAL AND DEFINITIVE AUTHENTICATION. RULES FOR THE LEGISLATOR AND THE JUDGE, CONCERNING THE AUTHENTICATION OF WRITTEN EVIDENCE.

Such being the possible modes of authentication,—next comes the inquiry, which mode on each occasion ought to be required?

For this purpose, a distinction must be taken, in the first instance, between provisional authentication, and definitive.

By provisional, I mean that evidence which may be received as sufficient for the authentication of the evidence in question, provided that no suspicion of its authenticity is expressed on the other side. By definitive, I mean that which, if satisfactory in itself, shall be deemed sufficient proof of the authenticity of the instrument, notwithstanding all protestations and contestacions on the other side.

For the purpose of provisional authentication (that is, in all ordinary cases,) that mode of authentication will be the most eligible, which in each instance can be employed with least vexation, expense, and delay. But, should the authenticity of the document be disputed on the other side—in a word, should it be accused of forgery,—in such case the subordinate consideration referring to these collateral inconveniences must give way to the superior consideration referring to the direct justice of the case: always supposed, that the imputation of forgery may not be allowed to be made through mere wantonness, much less in the express view of giving birth to those collateral inconveniences; and that, accordingly, in the case of mala fides or temerity, the burden of the inconvenience may rest ultimately on the head of the party to whose misconduct it owed its birth.

If the mode of authentication which is not needful but in case of contestation, be regularly employed where there is no contestation—where no doubt of the authenticity of the document is really entertained; and if, between the modes of authentication necessary in the two cases, there be upon an average any considerable difference in respect of vexation, expense, or delay; the aggregate mischief unnecessarily produced in those three shapes must be prodigious indeed. Among the writings of all sorts which come to be exhibited in a court of judicature in the character of evidence, if there be one out of a thousand in respect to which any such suspicion is really entertained, the proportion would prove much larger than I should expect to find it. Upon this supposition, in nine hundred and ninety-nine instances out of every thousand, this mass of inconvenience will be created without necessity or use, if, in pursuit of a phantastic idea of regularity, the employment of the definitive mode of authentication be insisted on, to the exclusion of the provisional mode: the most convenient, i. e. least vexatious, expensive, and dilatory mode, which might so unexceptionably have supplied its place. This oppressive plan of authentication we shall find established in English jurisprudence.

In the adjustment of the modes of authentication to be established in regard to written evidence, the leading points or ends require to be kept in view: on the one hand, satisfaction in respect of trustworthiness; on the other hand, avoidance of delay, vexation, and expense—the three inseparable modifications of collateral inconvenience.

Of these two ends, this first-mentioned being the main and principal end, has in general been pursued with a degree of preference, which would have been very proper, but that the sacrifices that have been made to it, at the expense of the triple collateral end, have been inordinate, and much beyond anything which good economy in this respect would be found to authorize.

The supposition upon which judges and legislators have proceeded, in the fixation of the modes of authentication which they have prescribed, has been that of a universal and constant disposition on the part of all suitors to commit forgery: or, if that supposition has not in every instance been actually entertained, it is the only one on which the modes prescribed are capable of being justified—the only one by which the price paid, in the shape of delay, vexation, and expense, for the supposed advantage in the shape of satisfaction in respect of trustworthiness, would not be recognised to be excessive and oppressive. If among a thousand cases in which the legal effect of a piece of written evidence is in dispute, there be not so much as one in which the authenticity of it is a matter of real doubt on the part of the suitor against whom it is produced,—it is only in the one case where it is matter of real doubt, that the price paid for authentication in the shape of delay, vexation, and expense, or all together, need be so considerable as to be worth counting. Under the existing system, there is scarce a cause in which it is not considerable, and in many a cause it would be found to be seriously oppressive.

Thus it happens, that for one grain of mischief produced, or that would or could be produced, by fraud in the shape of forgery, a thousand, ten thousand, are produced by fraud in the shape of chicane: of chicane, produced partly by the enmity of suitors, partly by the rapacity of their agents, abetted by that of the subordinate officers of justice: both passions protected and encouraged and engendered by prejudice and indifference on the part of judges and legislators. Familiarized with the spectacle of continual misery, generated according to rule and custom, and therefore on their parts without blame,—the reduction of the mischief to its minimum, the reduction of it so much as within any narrower bounds, never presents itself to them as worth regarding. Like so many other processes which go on as it were of themselves, according to pre-established and never-considered rules, the authentication of evidence is considered as a sort of mechanical operation, the pathological effects of which have no claim upon them for so much as a thought. Whence all this composure? For the observance of the established rules, the man in office is responsible: for the propriety of these rules—for their subservience to the ends of justice, he is not responsible.

To attempt in this place to combat the triple-headed monster by any proposed regulations of detail, would be to touch upon the topic of procedure: a general observation or two may serve to indicate the course. Authentication in the ultimate, and what may be styled the adverse, mode, ought, instead of being the routine of practice, to be the dernier resort, the extraordinary recourse. The process of authentication should be carried on, not at the time of trial, but between party and party, at a preliminary meeting, either in the presence of the judge, or before some inferior minister of justice, whose time can best be spared.*

The party who has a document to produce, produces it in the first instance to the adverse party, who either admits the authenticity of it, or declares his intention to contest it. If he admits it, he marks it as admitted. If he chooses to contest it, he has a right to do so, but he uses it at his peril—at the peril of simple costs in case of simple temerity, at the peril of extra costs in case of mala fides. The end in view is, in every instance, to save the suitors from the delay, vexation, and expense, of adverse authentication, in so far as these several inconveniences are avoidable. The means to be employed in the prosecution of that end, is the taking such arrangements as shall make it the indisputable interest of every individual concerned, each in their several stations (parties, agents of parties, officers of justice of all classes,) to abstain from giving birth to these several inconveniences, any further than as they are necessary.

The virtual penalty inflicted on this occasion by imposition of costs with the above views, should not depend on the ultimate decision of the cause, but should be infficted pro unaquâque vice, for each act of authentication unnecessarily performed. Otherwise, to the enmity of a suitor who was persuaded of his having the law on his side, the proposed remedy would apply no check. The principle would remain unapplied, unless, to each particular act of vexation, its own particular penalty stood opposed.

On the subject of the supposed proportion between the number of the cases in which suspicion of spuriousness has not existence, and that of those in which it has existence, one observation there is, which, to every person to whom the practice of technical procedure is familiar, will be almost sure to present itself.

“Number of cases,” says the objector, “in which no suspicion of spuriousness is entertained, nine hundred and ninety-nine; be it so: number of cases in which suspicion of that sort is really entertained, one, and no more; be this likewise, for argument’s sake at least, admitted. But, in addition to the one case in which any such suspicion is really entertained, what is there to prevent the bringing forward a pretence of suspicion, in an indefinite multitude of other instances? and in particular (for example) in every instance in which the party who is in the wrong (suppose the defendant) has more to gain than to lose by the delay, or, on either side of the cause, entertains a hope of forcing his injured adversary out of the field of litigation by the pressure of the expense.”

The answer is: The state of things on which the above question grounds itself, is the existing state of things under the reign of technical procedure. But, in respect of the matter in question, the state of things here supposed is exactly opposite.

It being the policy of the existing state of things (for the sake of giving every practicable increase to the number of causes, and to the profit extractible from each) to give every possible increase to the number of malâ fide defences and demands, as well as to the number of the operations performed, and to the number and length of the instruments exhibited, on the occasion of each such suit, bonâ and malâ fide such taken together—and, to that end, to afford to wilful falsehood and insincerity, in every imaginable shape, every practicable facility and encouragement,—falsehood and insincerity in the parties litigant have accordingly been exempted, with little exception, from the check of counter-interrogation in every shape, and without any exception, from the check of counter-interrogation in the vivâ voce shape.

But, in the state of things here in question, whatsoever, on this or on any other subject, were said by a party on either side of the suit or cause, would be said under the influence of whatsoever securities for correctness and completeness are or would be applied to the case of an extraneous witness: under the influence of vivâ voce counter-interrogation at any rate: under the check of an oath, if, notwithstanding the objections brought forward in this work against that ceremony, it were thought fit to be retained; if not, under the check of a solemn and deliberate averment.

A party contestant would no more have it in his power to reap any advantage from a naked averment, declarative of a belief on his part in disaffirmance of its genuineness, or of a suspicion of its spuriousness, than the party exhibitant could do, from a naked averment, declarative of a belief on his part in affirmance of its genuineness. Each would alike be liable to be called upon (and under the same securities for sincerity as in the case of any extraneous witness) to state, in the most explicit manner, the grounds of the persuasion professed by him to be entertained.

To rash, as well as to mala fide contestation, various are the other checks that might be, and, if the ends of justice were the objects, naturally would be, applied. If, for example, by the production of a source of evidence, the needfulness of which (after the mutual explanations in question) appeared more or less doubtful to the judge, delay and expense to a certain amount would manifestly be necessitated,—not only would eventual compensation for the damage by such delay be secured, as well as the expense attendant on the production of the evidence in question cast of course upon the party by whom the production of it was thus insisted on;—but if, by the exhibition of this evidence, a demand for counter-evidence to be exhibited by the adverse party were produced, the expense of such counter-evidence might provisionally be charged, in the first instance, upon the party thus insisting: rather than that by such means it should be in his power to oppress his adversary, by exhausting his means of maintaining his post in the field of litigation—his means of pursuing, in the character of plaintiff, his own claim, or repelling, in the character of defendant, that of the party on the other side.

In some cases, for the purpose of provisional authentication, instead of the executed, or rather say recognised, instrument, a transcript, or an archetypal draught,* may be employed.

Several cases may be mentioned, in which, supposing less delay, vexation, and expense, to be necessary to the adequate authentication of this succedaneous script, than to that of the proper instrument, the substitution may be employed with advantage.

Note that, for the purpose of discussion, on the ground of the contents, subject to eventual correction, the succedaneous script may serve exactly as well as the proper instrument.

If, in so far as, under the contract in question, the dispute turns upon the point of law, the question of law is decided against the exhibitant (plaintiff or defendant,)—the delay, vexation, and expense, of which the exhibition of the proper instrument would be productive, may, if worth saving, be thus saved.

Supposing that there is no question of law, or, if there be, that the question is decided in favour of the exhibitant: in either case, allowance of his claim follows of course, upon the supposition of the conformity of the succedaneous script thus exhibited to the proper instrument, of which the genuineness as well as the existence is thus, provisionally at least, supposed. Supposing the exhibitant to be the plaintiff: in this case, upon the authority of this succedaneous script, even possession might be delivered to him, if adequate security be given by him for eventual restitution ad integrum; i. e. for putting the adversary in a plight in every respect as good as if the possession had not been changed.†

Of the actual execution, and thence of the genuineness, of the proper instrument (so likewise of the correctness and completeness of the succedaneous script,) even in case of contestation or doubt,—for saving of delay, vexation, and expense, evidence less conclusively probative than for the purpose of a definitive decision might be necessary, might, for the purpose of a provisional decision, be received on either side.

Even if contested, a script which is authenticated ab intrà (i. e. which, on the face of it, presents the signature of the apparent author, affixed to it for the evident purpose of authentication) need not be authenticated ab extrà in the first instance. Why? Because, unless it be supposed to be tainted with forgery, its authenticity cannot appear dubious. But delinquency ought not in any case to be presumed without special ground; much less delinquency of so high a cast.

Inability to effect the authentication of a script on or before a certain day, need not—ought not, to be rendered so much as a cause of delay, much less of ultimate miscarriage. The decision—a decision in all other respects ultimate—might be made provisional, dependent upon the subsequent authentication of the instrument on or before a day to be named: nor need even that nomination be so inexorably peremptory, as to allow accident, much less fraud, to triumph over justice.

Note that, in all these cases, the advantage and propriety of giving admission (provisional admission and effect) to such succedaneous evidence, depends upon the relative quantity of the inconvenience saved by it, in the shape of delay, vexation, and expense. But let it not be forgotten that to this quantity there are no limits, other than those of the earth’s circumference.*

Note, moreover, that, so far as concerns written evidence (including the fact of its genuineness, and the nature of its contents,) the savings capable of being made in case of contestation, would, the whole mass of them put together, be inconsiderable, in comparison with that which, in the case of the supposed proper script, upon a call made by the party exhibitant, would have place, by reason of admission without contestation, as above.

To these savings in the shape of delay, vexation, and expense, may be added a saving that, in the account of an honest man, will not be regarded as fit to be neglected—a saving in the article of improbity: improbity on the part of the parties and their professional advisers, improbity on the part of the judges, improbity on the part of the custos morum, improbity on the part of the keeper of the royal conscience.

In the ordinary intercourse of life, a man to whom it has happened to deny his own handwriting, is pointed at as a man of lost character; and to such a degree lost, that, to a person to whom the like loss is not a matter of indifference, it may be scarce safe to associate with him.

On what ground is it that, for such a mode of conduct, a man is thus consigned to infamy? On this, or on none, viz. that in this way he was knowingly and wilfully guilty of falsehood—wilful and deliberate falsehood for the purpose of injustice.

The man by whom his adversary in litigation is loaded with the delay, vexation, and expense of proving (as well as exposed to the peril of not being able after all, in the teeth of so many opposing quirks, to prove at any expense) the genuineness of a document, of which there exists no real doubt;—literally speaking, and to outside appearance, this man does not commit the falsehood that would have been committed had the question, “Is the genuineness of this document matter ofdoubt to you?” been put and answered in the affirmative. The falsehood is not committed: but what is committed is an injustice—an injustice which, in point of mischievousness, is exactly upon a level with such falsehood—the injustice, in which such falsehood would have found its sole object, and its sole advantage.

The falsehood has not been committed: but why has it not? Only because the judges (in whom the practice in this behalf has found its creators and preservers) have taken such good and effectual care to secure, to every dishonest man who in this way finds his account in making himself their instrument, the benefit of such falsehood; without that risk, which, had the eventual necessity of it been left subsisting, would have constituted the expense of it.

In so far as concerns justice and veracity, there are two codes of morality that in this country have currency and influence;—viz. that of the public at large, and that of Westminster Hall. In no two countries can the complexion of their respective legal codes be easily more opposite, than that of those two moral codes, which have currency, not only in the same country, but in the same societies: and, if so it be, that, in the public at large, the system of morals that has place in practice, is, upon the whole, honest and pure,—it is so, not in proportion as the morality of Westminster hall (of which so many samples have already been, and so many more will be, exhibited) is revered and conformed to, but in proportion as it is abhorred. So far as concerns love of truth and justice, the greatest but at the same time the most hopeless improvement would be, the raising of the mind of a thorough-paced English lawyer, on a bench or under a bench, to a level with that of an average man taken at random, whose mind had not, for professional views and purposes, been poisoned with the study of the law: as, on the other hand, in point of sound understanding and true wisdom, the raising the same sort of mind to a level with that of a man of competent education, of the nature of that to which the term liberal is commonly applied.

Yes: it is from novels such as Maria Edgeworth’s, that virtues such as the love of justice and veracity,—it is from the benches, the bars, the offices, the desks in and about Westminster Hall, that the hatred of these virtues, and the love of the opposite vices,—is imbibed. But that which to Maria Edgeworth was not known, or by Maria Edgeworth was not dared to be revealed, is the genealogy of her Lawyer Case: that that very ingenious and industrious gentleman had for his elder brother the Honourable Charles Case, barrister at law, M. P. in the lower house; and both of them for their father the Right Honourable the Lord Chief Justice Case, Christopher Baron Casington, in the upper: and that it was only by executing the powers given or preserved to him, and earning the rewards offered and so well secured to him, by his noble and learned father, that the younger son became what he was.

How long, for the self-same wickedness, shall the inferiors in power and opulence—the inferiors who are but instruments—be execrated, and the superiors, who are the authors of it, adored? Attorneys, solicitors,—were they the makers of judge-made law?—were they the makers of the system of technical procedure?—were they the makers of the law of evidence?

[* ]In the following Book, the necessity of such a preliminary meeting, for innumerable other purposes as well as this, will be fully shown.

[* ]Archetypal,—i. e. the corrected and settled draught from which the instrument itself was transcribed, and which served as an archetype, or original to it. The appellation rough draught would not have served; since nothing hinders but that this original, to which no signatures have been attached, may have been no less fair than the instrument which (being transcribed from it) became the subject of the act of recognition, and in consequence received the signatures.

[† ]In actual practice (Peake, p. 64,) where the supposed authentic instrument has, according to the evidence (but quære, what and whose evidence?) been lost (but quære, whether known to have perished—or, after search, simply not found?) a statement made of the supposed contents, from mere memory, has been received instead of it.a To how prodigious an amount, in this real case, is the danger of abuse and mischievous misdecision greater than in the above supposed and proposed case! Supposing the fact of such deperition out of doubt: on this supposition, all check to intentional and mendacious misrepresentation of the supposed contents of the instrument, has perished along with it: and as to unintentional misrepresentation, who does not see how slight the security against it is in this real case—how strong, and all but complete, in the supposed case? Unless the witness or witnesses by whom (in speaking of the succedaneous script as genuine) the proper instrument is spoken of not only as being genuine but as being in existence, say thereby what is not true,—there the scripts remain, both of them, capable of being confronted at any time, until one of them is lost or destroyed.

[* ]About forty years ago, in a statute relative to East India affairs (26 Geo. III. c. 57, sect. 38, Peake. 66,) provision was made, that,—in the case of written evidence of a certain description, written and attested in the East Indies,—for the authentication of any such article of evidence in Great Britain, proof of the handwriting of the persons whose signature appeared on the face of the instrument, should suffice: and this too for definitive authentication, and without a thought of any need of eventual confirmation by ulterior and better evidence: and so, vice versâ, in the case where an instrument executed in Great Britain requires to be authenticated in the East Indies.a

To this same purpose, a discovery that perhaps will one of these days be made, is, that, besides the East Indies, the surface of the earth includes other countries, more or less distant from Great Britain; and, in the course of a century or so, at the present rate of the progress of legislation, the benefit of this provision may be expected to be extended to several of those other countries. But for each such country a separate act will be required; and, to warrant the motion for leave to bring in the bill, proof will be required (or at least an assurance given by a certain number of persons) that by the want of such accommodation divers persons have lost their property and been ruined; and, as often as any such bill is brought in, it will be opposed on the ground of innovation; and the proposer will be held up to view in the character of a Jacobinical anarchist, a Utopian speculatist, or both in one.

Voluminousness in tenor, scantiness in purport: thus it is that these vices, both of them to an insurmountable extent, are the properties of the same body of law. In this same state of things, on the part of men in power, the most anxious of all exertions are those which have for their object the preventing the application of reason to the field of law.

The trial in London; abode of the sole surviving attesting witness, a place in Cumberland or Cornwall; correspondents of his in plenty in London, with volumes of letters received from him; his handwriting would not be believed to be his, without his being dragged from Cumberland or Cornwall, for no other purpose than to say that it is his. A consideration which (on this as on every other occasion) is, by the licensed oppressors of the poor, and plunderers of rich and poor, trodden under foot, is, that, to a man who has not money enough to fetch a witness from Cumberland or Cornwall, the witness might as well be in the East Indies.

Of the sort of script thus allowed to be in this makeshift mode authenticated, the description is, of course, inadequate to the demand. Instruments of contract—instruments of the nature of those which are in use to be furnished with attesting witnesses,—yes. But a script at large, and (for example) a commercial letter or account-book, is this capable of being thus authenticated? Answer,—Yes or No: whichever happens to be most convenient and agreeable to the judge.—Much may be said on both sides: enough for this purpose on either side.

[† ]In actual practice (Peake, p. 64,) where the supposed authentic instrument has, according to the evidence (but quære, what and whose evidence?) been lost (but quære, whether known to have perished—or, after search, simply not found?) a statement made of the supposed contents, from mere memory, has been received instead of it.a To how prodigious an amount, in this real case, is the danger of abuse and mischievous misdecision greater than in the above supposed and proposed case! Supposing the fact of such deperition out of doubt: on this supposition, all check to intentional and mendacious misrepresentation of the supposed contents of the instrument, has perished along with it: and as to unintentional misrepresentation, who does not see how slight the security against it is in this real case—how strong, and all but complete, in the supposed case? Unless the witness or witnesses by whom (in speaking of the succedaneous script as genuine) the proper instrument is spoken of not only as being genuine but as being in existence, say thereby what is not true,—there the scripts remain, both of them, capable of being confronted at any time, until one of them is lost or destroyed.

[* ]About forty years ago, in a statute relative to East India affairs (26 Geo. III. c. 57, sect. 38, Peake. 66,) provision was made, that,—in the case of written evidence of a certain description, written and attested in the East Indies,—for the authentication of any such article of evidence in Great Britain, proof of the handwriting of the persons whose signature appeared on the face of the instrument, should suffice: and this too for definitive authentication, and without a thought of any need of eventual confirmation by ulterior and better evidence: and so, vice versâ, in the case where an instrument executed in Great Britain requires to be authenticated in the East Indies.a

To this same purpose, a discovery that perhaps will one of these days be made, is, that, besides the East Indies, the surface of the earth includes other countries, more or less distant from Great Britain; and, in the course of a century or so, at the present rate of the progress of legislation, the benefit of this provision may be expected to be extended to several of those other countries. But for each such country a separate act will be required; and, to warrant the motion for leave to bring in the bill, proof will be required (or at least an assurance given by a certain number of persons) that by the want of such accommodation divers persons have lost their property and been ruined; and, as often as any such bill is brought in, it will be opposed on the ground of innovation; and the proposer will be held up to view in the character of a Jacobinical anarchist, a Utopian speculatist, or both in one.

Voluminousness in tenor, scantiness in purport: thus it is that these vices, both of them to an insurmountable extent, are the properties of the same body of law. In this same state of things, on the part of men in power, the most anxious of all exertions are those which have for their object the preventing the application of reason to the field of law.

The trial in London; abode of the sole surviving attesting witness, a place in Cumberland or Cornwall; correspondents of his in plenty in London, with volumes of letters received from him; his handwriting would not be believed to be his, without his being dragged from Cumberland or Cornwall, for no other purpose than to say that it is his. A consideration which (on this as on every other occasion) is, by the licensed oppressors of the poor, and plunderers of rich and poor, trodden under foot, is, that, to a man who has not money enough to fetch a witness from Cumberland or Cornwall, the witness might as well be in the East Indies.

Of the sort of script thus allowed to be in this makeshift mode authenticated, the description is, of course, inadequate to the demand. Instruments of contract—instruments of the nature of those which are in use to be furnished with attesting witnesses,—yes. But a script at large, and (for example) a commercial letter or account-book, is this capable of being thus authenticated? Answer,—Yes or No: whichever happens to be most convenient and agreeable to the judge.—Much may be said on both sides: enough for this purpose on either side.

[a ]In the fifth edition of Peake’s Compendium, p. 96, the passage relating to the subject runs thus.—Ed.“But of private deeds, or other instruments, the production of the original, if in existence, and in the power of the party using it, is always required: till which done, no evidence whatever of the contents can be received; but where the original has been destroyed or lost by accident,—as where an original award was lost in a mail which was robbed; or, being in the hands of the adverse party, notice has been given him to produce it,—then an examined copy, or even parol evidence of the contents, being the best evidence in the power of the party, is received.”

[a ]This is referred to by 100 Peake. 5th edit., and in p. 60 allusion is made to the 13 Geo. III. c. 63, sect. 40, which was passed to enable the Court of King’s Bench, in all cases of indictment or information for misdemeanour or offences committed in India, to award writs of mandamus requiring certain judges in India to hold a court for the examination of witnesses, and to transmit the depositions to England.—These depositions are declared to be as good and competent evidence, as if the witnesses had been present, and sworn and examined vivâ voce. The 44th section makes a similar provision in civil actions or suits, in any court of law or equity, for which cause arises in India.—Ed.