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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 III.

CAUSE OF THE VICES OF TECHNICAL PROCEDURE, THE SINISTER INTEREST OF THE JUDGE.

§ 1.

Ends of judicature, under the fee-gathering system, opposite to the ends of justice.

Various are the channels through which, under the fee-gathering system, the matter of corruption may find its way into the bosom of the judge.

1. The fee is received into the judge’s own hands, or, being received by another hand, is placed openly to his account.*

2. The fee is received by some subordinate officer, by the hand or on the account of the subordinate; but the office is at the disposal of the judge, and sold by him for his own benefit: the whole of the purchase-money being put into his own pocket.

3.—or, upon the admission of the officer, the judge receives a bonus, avowedly or tacitly proportioned to the quantity of the emolument constituted by the aggregate of the fees.

4. The office thus endowed is at the disposal of the judge; but, being (by law, or fear of public censure) inhibited from selling it, he gives it to some person connected with him by the ties of blood, alliance, or service: thereby saving to himself the charge of a provision which he would or would not otherwise have made for the same person at his own expense: the possessor of the office thus endowed doing the duty of it in person.

5.—or by deputy; that is, by doing nothing for it but receiving the fees: the deputy receiving a consideration for his trouble, by a fixed salary, or by a share of the fees.

6. The fees, having been received by a deputy, by whom the duties of the office are performed, are paid over to two or more persons in conjunction, nominated by the judge: which persons, not doing either of them any part of the business, appear upon the face of the transaction to be trustees; the person for whose use they are trustees not being declared, and thence appearing to be the judge himself, by whom the trustees were nominated.

If the aggregate of fees liable to be paid had, in the instance of each suitor, been no greater than it would have been in his power to pay without any inconvenience worth regarding; if, at the same time, it had been out of the power of the judges, or their subordinates, to add, either to the amount of the fees exacted on each occasion, or to the number of the occasions on which they were exacted; in such case, between the interest of the functionary and his duty, no opposition would have been created by this means.

But, in the nature of things, it was scarce possible that, in the situation in question, and with the powers inseparable from it, power should not be possessed of adding either to the quantum of the fee, or to the number of the occasions on which it comes to be exacted.

The mischief became much greater, the opposition of interest to duty much more strenuous and disastrous, when a given sum was raised by multiplying the occasions of receiving fees, than when it was raised by adding to the quantum of this or that fee. By merely adding to the quantum of this or that fee, no other mischief would have been produced than what would have been produced by the addition thus made to the quantum of the expense. But, by adding to the number of the occasions, corresponding additions were made, inevitably made, to the vexation and delay, over and above the additions made to the expense.*

Unfortunately, it became, on various accounts, easier, much casier, to add to the number of the occasions on which fees came to be exacted, than to add to the quantum of each fee. Additions to the quantum of each fee could not escape notice, and would be apt to produce complaint. What did not come under notice, could not produce complaint: and the occasions of realizing additions to the quantity of writing manufactured, or number or duration of other acts done,—in a word, to the quantity of business rendered necessary to be done, and thence to the number of the fees exacted on the occasion of it,—might very easily, and on a variety of undetectible, though false, pretences, be augmented almost without stint.

Accordingly, under this system, the judges, to the power, added the effectual inducement, to produce factitious vexation, expense, and delay (or, more briefly, to make business,) in a quantity almost without limit, and continually tending to increase: the vexation, expense, and delay, for the sake of the profit extractible, in the shape of fees, from the expense. Hence the production of vexation, expense, delay, and official profit, became the real, and in a manner the sole, ends of judicature: profit the ultimate end; expense and delay, so many intermediate ends; the production of the vexation, not an end, but a collateral result.

Had not collateral mischief been contributory to the profit (or, what came to the same thing, inseparably attached to the production of it,) it might not have been any man’s study to produce any part of that collateral mischief: but, being either contributory to the profit, or inseparably attached to the production of it, it became every man’s interest, and consequently every man’s study, to produce them to the greatest amount possible.†

So far as these ends of judicature are pursued, so far must the ends of justice be sacrificed. But what the people and the sovereign expect and demand is, that the ends of justice be pursued. Here, then, it becomes necessary to make a sort of compromise, and, to preserve appearances, for the purpose of keeping the public deceived and quiet, to sacrifice, to a certain degree, the pursuit of the ends of judicature: for, that the ends of justice might in general be supposed to be pursued steadily and exclusively, it was necessary that, to a certain degree, they should be actually pursued—that they should be pursued in all cases in which the pursuit of them was not adverse, and even in some cases in which it was adverse, to the pursuit of the ends of judicature. Thus, when, in other stations, public functionaries receive public money with a view of extracting what they can of it to their own use, in the way of embezzlement or peculation,—it becomes necessary to them notwithstanding (to the prejudice, and pro tanto to the sacrifice, of these their objects) to apply a part of such moneys, commonly by much the greater part, to the services for which it was designed.

But, to raise the mass of official profit in this line to its maximum, it was not sufficient to raise to its maximum the quantity of profit extracted on the occasion of each suit:—it became also necessary to raise to its maximum the number of suits: understand, of such suits, and such suits only, as would yield a mass of profit worth acceptance on such terms.

Whatever suit would either yield no profit at all, or none that were worth acceptance—none that, by the mass of its profit, would outweigh in the mind of the judge the trouble of doing the business; in regard to every such suit, it was his interest that it should never be begun, or, being begun, should come to an end as soon as possible: for the trouble, the labour attached to the doing of the business, is, in other words, so much vexation to the judge.

Hence, the end of actual judicature became distinguishable into two principal branches: positive and direct, the augmentation of profit; negative and collateral, the diminution of trouble. By the augmentation of the aggregate mass of fees collected, both these ends were served at once: by the money paid by such of the suitors as could and did pay, profit was augmented: by the exclusion of such suitors as were either not able or not willing to pay, trouble was diminished. In the first case, the imposition operated as a tax, and yielded revenue: in the other case, it operated as a prohibition, and yielded ease.

So successfully has this fee-gathering system acted in the production of one of those results which it has converted into the actual ends of judicature (viz. delay,) that we shall see the same suit which, under the natural system, regularly occupies on an average a space of a few minutes, occupying with equal regularity, under the fee-collecting system, a space of some hundreds, not to say thousands of times that magnitude. So successfully again has it acted in the production of another of those ends of judicature—denial of justice—that (as to all remedies other than such as are applied by criminal suit) we shall find from six to about nine-tenths of the people in England fixed by it in a state of perpetual outlawry.

If, by the system of which this delay and this denial of justice were the ends and are the fruits, a greater chance of right decision were afforded, than by the natural system above contrasted with it, the mischiefs of the technical system might receive some set-off, some compensation, though it could searcely be anything near an adequate one. But, in proportion as both systems are seen into and understood, and even in the course of the very small part of the examination contained in the ensuing pages, it will be seen that the chance of right decision is, by the technical system, decreased in a variety of ways—increased in none.

§ 2.

Alliance between the sinister interest of judges and that of professional lawyers.

Under every system of procedure, and in the very earliest and rudest stages of society, some individuals there must always have been, to whom, by infirmity, bodily or intellectual (on this as on other occasions,) the assistance of others must occasionally have been rendered necessary. So far as persons standing in need of this assistance could find friends that were at the same time sufficiently qualified to afford it, and able to afford it gratis, so far society could exist, and did exist, without professional lawyers. But, so soon as one instance manifested itself, in which a man, unable on other terms to obtain the assistance he looked upon as necessary, had recourse to pecuniary retribution for the purchase of it,—that instant the profession of a lawyer came into existence.

The same motives by which, in every other line of money-getting business, a man is stimulated to raise to its maximum the quantity of his business, will of course apply themselves to this, and with equal energy. The interest of the judge was, that there should be as many suits as possible: the interest of the professional lawyer was the same. Here then is a community of interests, between the judge on the one part, and the professional lawyer on the other: and this community of interest is, upon the face of it, perfect and entire. It was the interest of each, that the mass of business (understand always profit-yielding business) should be as great as possible: it was the interest of each, that any exertions of his own, by which any addition could be made to that mass, should not be spared. Fellow labourers towards one common end, the acquisition of pecuniary profit—co-operators throughout the whole of the career, yet in no part of it competitors,—a sort of virtual partnership was thus established between these two species of lawyers: a species of connexion (be it ever remembered) constituted entirely by the mode of payment established in the case of the judge; a connexion ever existing where that mode of payment exists, never existing either where the judge receives no pecuniary retribution in any shape, or where, receiving one, he receives it in the shape of salary only, and without fees.

Under the fee-gathering system of procedure,—the main and never-failing branch of the art of judicature, a branch which is sure to be cultivated, and in perfection, whatsoever comes of the rest, is the art of making business. In the exercise of this art, we now see one sure and ever ready assistant to the judge; the professional lawyer, his partner, as aforesaid.

Whenever it happened that, in the transaction of the business, the party, the client, was himself present, as well as the professional lawyer, his assistant,—the presence of a person whose interest it was, that, of the business for which he was to pay, not more should be done than was necessary to his purpose, operated as a check to the exertions of the partnership in that part of their industry which consisted in the art of making business. Both parties felt themselves stimulated by the strongest and most constantly acting interest, to make every exertion for the removal of so troublesome an obstacle. An iniquity so glaring, so repugnant to the most obvious ends and perpetually recurring principles of justice, so opposite to the practice of every man that ever lived, in every case in which he had the discovery of truth really at heart, could not in any country be the work of a moment. In England in particular, it cost several centuries to bring this part of the system of exclusion to the perfection in which it exists at present.

To make a direct rule of court, saying, in so many words, No suitor shall be allowed to transact, or join in the transaction, of his own business—no suitor shall ever be admitted into the presence of the judge, or of any of the officers acting under the direction of the judge,—would have been too monstrous. The resource was, so to torment and vex the suitor by delays and fruitless attendances, as to make him regard the faculty of saving himself from this torment as a special grace and favour.

No system can ever be made so absurd or atrocious, as to appear so to the bulk of those who are born under it; much less to those who are paid for upholding it. In Mexico, human victims were understood to be an acceptable fee, human blood a bonne bouche, to the supernatural and immortal judge. In England, so late as the seventeenth century, duelling was regarded as the surest mode of obtaining his judgment:* and, in the presence of his natural and mortal deputies, champions were, as attorneys and barristers still are, regarded as being, on many occasions, eligible substitutes to parties and witnesses.

A capital improvement was made in the art of making business, when one professional lawyer had contrived to make pretences for calling in the assistance of another. Each made business of his own, and business for the other. John was paid for attending Thomas—Thomas for being attended by John: John was paid for writing what Thomas was to read—Thomas for reading what John had written. In operations of the mechanical kind, by the division of labour, the sum total of labour necessary to be bestowed is lessened. In the case of the species of intellectual labour here in question (at any rate where it is paid for in this mode,) the result is reversed: the sum total of labour bestowed, or (what comes to the same thing) pretended to be bestowed, is increased by what is called division—by the allotting of different portions of labour, or pretended labour, to so many different hands.

Of a cause the same in denomination, how comes it that, in the two cases, the effects are so opposite? A seeming paradox: but the direction in which interest acts, explains it. In the physical case, the profit of the directing hand augments, as the quantity of labour employed in the production of the given effect diminishes. In the psychological case, the profit of the directing hand is increased, not by the diminution, but by the augmentation, of the quantity of labour bestowed, or pretended to be bestowed.

The quantity of business made in each given cause being thus made to increase, by and with the number of hands employed in it,—it has become the interest of all hands, and in particular of the superintending hand, to give every possible increase to the number of such hands. In other words, the quantity of profit flowing under this system into the coffers of the judge receives a natural increase from the number of the channels through which it flows.

In ordinary partnerships, an increase in the number of the partners is rather a consequence than a cause of an increase in the quantity of profitable business: where it becomes a cause, it is always in virtue of, and in proportion to, the aptitude for the business on the part of each such additional partner, whether in the way of capital, connexions, industry, or skill. But, in this great law partnership, an increase of the number of the partners has never been a consequence of the increase of business—has ever been a cause; and—as to skill and industry—to the augmentation of the factitious part of the business, the absence of those qualities is much more favourable than their presence: the more neglects and the more blunders, the more business.

To the grand object of raising to its maximum the quantity of business, or the manufactory of made business, there is no one article so essentially useful, as a stock (as copious as possible) of lies. Utterance of lies is business: refutation of lies is business: decision and operation in every way upon the ground of those lies is business: reversal of that decision, undoing, or repairing, or pretending to repair, the mischief done by those operations, when the lies come to be detected, is business.*

But the greater the number of professional substitutes on the same side, the greater and more efficient the stock of lies: the generation is more easy, the refutation and detection more tardy and more difficult, the danger of punishment (a danger which, if it were realized, might operate in the way of prevention) the less formidable. Moreover, the greater the number of professional channels through which a profitable lie can be made to flow, the more effectually is detection prevented, or at least retarded; and, by the destruction of all individual responsibility, the more effectually is all danger removed of punishment or shame.

If the party for whose benefit (real or pretended) the lie is uttered, to and in the presence of the judge, is present at the uttering of it (whether it be by his own lips or another’s that it is uttered,) there is a somebody who is responsible for it, and that somebody is he. What you can do, if there be any use in it, is to exempt him from all factitious punishment: what you cannot do, is to exempt him from the natural punishment of present shame. On the other hand, keep him out of the way, providing at the same time a gang of professional lawyers of different classes, through whose pens and lips it shall have to flow till it comes to the ear or the eye of the judge; the more numerous the band (lawyers alone, or, if the client be the author, lawyers and client together,) the more secure they are, all and each of them, from every the slightest flush of shame. The lawyers are there; but they (such is their misfortune) are misinstructed and deceived: the client, if he were there, would be exposed to shame; but he is not there—care has been taken that he shall not be.

So in another branch of trade—the hustling trade,—the greater the number of the partners, the more difficult it is to ascertain, at each given moment, in whose possession the purse or watch is to be found.

In a partnership (it may be said)—in a partnership properly so called, as between one attorney and another, the community of interests is constant and complete: Stiles cannot pocket a sixpence, but Nokes comes in for an equal, or, according to the terms of the partnership (which comes to the same thing,) a proportional share. But many and many are the operations on the occasion of which, while the attorney receives so much, the barrister gets nothing, the judge as little: many, again, are the occasions on which, attorney and counsel each getting his profit, the judge still receives nothing as before.

Doubtless: but, to any practical purpose, what effect results from these exceptions? Not absolutely none; but next to none. To constitute the effective partnership, to render the community of interests strong enough for every pernicious purpose, it is not necessary that the judge should come in for his share on every occasion; it is sufficient if there be any occasion on which he comes in for any share: sufficient on every other supposition than this, viz. that the aggregate amount of his share does not, communibus annis, constitute a sum sufficient in his station in life to exercise any corruptive influence.

The case is, that,—although upon a minute search and analysis made with this special view, a separation might be made between the two classes of cases—viz. those in which the judge does participate in the profits made by lawyers of the other classes, and those in which he does not,—yet so thoroughly intermingled are the cases that belong to one of the two classes with the cases that belong to the other, that, without such express research (a sort of research which one may venture to say no man ever made,) it is not possible for any man in the station of a judge to have retained in his mind any such conception clear enough to have maintained an influence on his conduct. What it may happen to him to say to himself, is—By this or that part of the present suit I shall not get anything: what it never can happen to him to say to himself, is, By two such suits I shall get no more than I shall by one.

What, then, is the result? That, literally speaking, there is no partnership, because there are no articles:—but that in effect, at least to the purpose here in question, and on the occasions on which the word partnership is here employed, the partnership is undeniable. There exists that sort of community of interests which it is the effect and the object of a partnership with articles to create, and for the expression of which the term partnership is preferable, as being so much shorter than any phrase by which the equivalent of it could be expressed in other words.

Considered in one point of view, the corruptive influence may in its effect be stronger than if there were an actual partnership, declared and confirmed by articles. In the case of a real and declared partnership, all eyes would be open to the existence of it—all hands upon their guard against its corruptive tendency. Acting under this check, the judges, the ruling members, would be more cautious, and abstain from serving the partnership interest, and (which is the same thing in other words) from vexing and pillaging the people, in many instances in which, for want of such a check, they now act at their ease. Whereas, at present, the thread by which the interests of the several members of the firm are bound together, being of so fine a texture as to be invisible to vulgar and incurious eyes, that check can scarcely be said to have existence.

That the existence of the corruptive connexion is generally unperceived, seems indubitable; else, how is it that,—not from lawyers only, but from non-lawyers of all classes, the boasts should be so incessant of the purity of English judicature?

That, in a certain sense, the purity is complete, seems altogether probable; viz. that, within the memory of any man living (to go no higher,) no English judge of the superior class ever received from a suitor anything that could with propriety be termed a bribe.

What is more; were it possible to know, I should not be surprised to learn, that no instance had ever happened in which any judge now living was instrumental, knowingly and willingly, in the establishment of any fresh rule or practice, the effect of which was to make any addition to the amount of the profit of the firm.

Were I to hear of the existence, without being apprized of the purport, of a new regulation, emanating from any of the courts of Westminster—and were I obliged, as suitors are sometimes in those courts, to make a bet,—I would lay the odds that the regulation had both for its object and its effect the promoting the interest of the people, in the character of suitors, and not that of the learned partnership. For inasmuch as, every day, at however slow a rate, the legislature and the people come to see further and further into their own interest in respect of matters of judicature,—every day, in point of obvious prudence, it becomes more and more necessary for the partnership to consult that interest.

But, having gone thus far, here I must stop. And, admitting on the part of the existing generation and their probable successors all this purity, no admission is made that is in any degree inconsistent with the supposition of a system rotten to the very core. Nothing is done by any man to make the practice worse. Some things are done now and then to make it better. But so thoroughly bad is it, having been so from the beginning—so thoroughly adverse to the people, so thoroughly favourable to the partnership,—that to attempt in any way to do anything to make it worse, would be an enterprise as unnecessary as it might be imprudent and unsafe. At the pace here supposed, improvement might go on century after century; and, after as many centuries as have elapsed since the Julian period, the system, in respect of its essential characters, might remain still the same—still subservient to the ends of judicature—still repugnant to the ends of justice. What these characters are, or at least some of them, will be endeavoured to be shown in the course of the next succeeding chapters.

§ 3.

Interest of the partnership in depraving the moral and intellectual faculties of the people.

Whatever mischief is done from the seat of judicature, must have a veil to cover it. It must be taken for justice, or it would not be endured. What is done by the authority of a judge acting as such,—were it avowed, or even, without being avowed, clearly understood, that it was contrary to justice, and by the judge himself known to be so,—in the first place, the sovereign, whoever he were, would not endure it; in the next place, if the sovereign would, the people would not: they would rise upon the judge, as they did upon Jefferies, and tear him piecemeal.

To keep the moral and intellectual faculties of the people in as corrupt and depraved a state as possible (under the exceptions dictated by a regard to personal safety,) may therefore be set down as among the constant studies of the man of law. To construct and keep at work such engines as should be best adapted to the purpose, has been the subject of his constant labours.

Suppose a people reduced to such a pitch of stupidity, as to be persuaded that to convert injustice into justice was a transformation in the power of every judge, and that, to effect it, nothing more was in any case necessary, than to pronounce one or other of three or four words, such as null, void, bad, quash, irregularity. What is easy enough to conceive is, that, supposing this point accomplished, the actual ends of judicature are fulfilled—the one grand problem solved.

Suppose, again, a people brought into and kept in such a state of stupidity, as to believe, upon the word of a judge or anybody else, that wilful falsehood, when uttered by or by order of a judge acting as such, becomes not only an innocent, but a useful, a meritorious, and even a necessary, practice; insomuch that, without it, justice either could not be administered at all, or at any rate could not be administered in anything like the same perfection as with it, and by the help of it. Here again (supposing this done,) what is easily understood is, that in such a state of things a judge need never be at a loss; for that, under favour of it, it is in his power at any time to commit, with impunity and safety, whatever wickedness is most to his taste.

All this is plain and easy. But the difficulty, I do not say is now, but one day will be—(posterity will feel it in all its force)—the difficulty will be, to conceive how it should be, that, in a state of society in many other respects so highly enlightened, a whole people, including the members of the sovereignty, should have been in such a state of infatuation as to give, in language or in practice, assent to two propositions, in which so much absurdity is combined with so much wickedness: propositions, the persuasive force of which depends upon a constant and universal habit of blind assumption: propositions in defence of which, when once put into question, not all the wit of mankind could furnish, in the way of argument, the value of a single syllable.

For reconciling the understandings of the people by argument and reason to the practice of these enormities, it is needless to say how vain the attempt would have been, how hopeless the task could not but have appeared to be. For reconciling their affections, and attaching them to the practice of these enormities, the course taken was, to give it a connexion as close and extensive as possible with such results as in themselves were most agreeable to those affections.

To do away the antipathy naturally excited in this or that man’s mind by the view of an immoral act habitually practised by another, no course can be so effectual (where it is a possible one,) as to engage him in the practice of it himself. This done, it is no longer in his power to accuse the other man, without accusing himself. His mouth is stopped for ever; and, to keep at peace with himself, an indispensable task is to reconcile himself in opinion, as well as he can, to that sort of conduct to which he has already reconciled himself in practice. From thenceforward, his thoughts on the subject will be as few as he can make them, and those all of them on one side. Whatever idea tends, in his view of the matter, to present the practice in an agreeable light, will be embraced with avidity: whatsoever tends to place it in an unfavourable point of view, will be studiously repelled with aversion and disgust.

Hence it is that, under the fee-gathering system, it has been to the partnership so desirable an object, and (with the help of the powers inseparable from the office) unhappily so easy a one, to convert the whole body of suitors, little less than the whole body of the people, into a company of liars; to make the practice of that vice a condition sine quâ non to the receipt—let us not say of justice—but of all those necessary benefits which are ever prayed for or granted under the name of justice.

Accordingly, in the road of moral filth and corruption thus elaborately made, not a step can a man stir without either uttering some lie, or acquiescing in the utterance of it by some one else. As nonsense succeeds to nonsense, absurdity to absurdity, so does lie to lie, from the beginning of the career to the end of it: all forced into men’s mouths by these pretended guardians of the public morals.

To the youth of both sexes, when flocking to a ball-room or a theatre, it has never yet been proposed, as a condition precedent to their admission into those seats of social pleasure and innocent delight, that they should, each of them, before the delivery of the ticket, take a roll in the contents of a night-cart, kept in waiting for that purpose. But an initiation of that sort cannot be more repugnant to the ends that attract the children of gaiety to a theatre or a ball room, than the being rolled, as suitors are, through the mire of mendacity, is repugnant to the ends in pursuit of which they find themselves under so unhappy a necessity as that of betaking themselves to that seat of affliction called a court of judicature.

§ 4.

Interest of the partnership in the irrationality of the law.

It was and is the interest of the partnership that the law be throughout as irrational as possible. Why? That it may be as unconjecturable as possible. The more rational, the more easy to discover by conjecture; the more irrational, the more difficult:—no, for that implies proportion; whereas nothing was more easy than to give it that degree of irrationality that should set conjecture at defiance.

In every country that is not plunged in barbarism,—the inhabitants of it subject to the yoke of corruption or caprice under the mask of justice (but where is the country that in this respect has completely emerged out of the sink of barbarism?)—the will of the sovereign has, throughout every part of the field of justice subject to it, clothed itself in a determinate assemblage of words: and those words it has adequately conveyed to the notice of each individual whose conduct is respectively required to conform itself to the respective portions of it. So far as this fundamental duty of the sovereign has been fulfilled, the office of conjecture is a sinecure. When and so far as this duty has been left unperformed, there extends the province of conjecture. The materials which conjecture has to work upon, have by some means or other been locked up, and rendered inaccessible to the great mass of those whose conduct is to be regulated, or rather whose condition is to be disposed of, by a decision impossible to be foreknown, because not previously in existence. Here then it is that the demand for conjecture comes in, and the use of rationality, for the assistance of the individual in the performance of a task at once so important and so difficult.

Applied to law, rational is as much as to say subservient to utility. Seeing that general utility is for the most part the object actually aimed at—always the object professed to be aimed at, by the authors of statute law,—men take for granted that the same has been the object aimed at by jurisprudential law. This being taken for granted,—each man—when, for the purpose of determining at the moment how to conduct himself, it becomes necessary to him to form a conjecture relative to the state of the law, actual or future, in that behalf—thinks with himself what sort of decision is most conformable to the conceptions he has been led to entertain concerning the dictates of general utility, viewed either immediately in themselves, or through the medium of the dictates of justice.

Utility being the object towards which, with more or less skill and felicity, all eyes are directed,—what appears to each man the track of utility, is the track in which he expects to find, on each occasion, the footsteps of the judge. Positive law, actually created statute law, or known decisions of jurisprudential law, excepted,—this is the only chance which the ideas of any one individual have of meeting with the ideas of any other, the judge himself included. The track of utility is the common place of rendezvous for all minds: meeting in it is the only chance which any one mind has of finding out any other. The road being one which they are all but too apt to miss, hence the expectations of each concerning what will be the opinions of this or that other are proportionably apt to be disappointed: but, be the disappointment ever so frequent, this is the only chance they have for escaping from it.

But, as it is the interest of every individual, in the character of subject (viz. to the law) and eventual suitor to the judge, to possess the greatest possible chance of finding out by conjecture what will be the eventual decision of the judge; so, on the other hand, under the fee-gathering system, it is the interest of the judge that, in the endeavours thus employed to find out what will be the decision, the suitor shall be as seldom right as possible: in other words, that, with reference to the suitor, the state of the law should be throughout not simply uncognizable, but as unconjecturable, as far out of the reach of conjecture, as possible.

From this unconjecturability, two intimately connected but perfectly distinct advantages accrue to the partnership, and, pro interesse suo, to the judge:—1. In proportion as the law really is unconjecturable, the failures made by the suitor in his attempts to find it out are frequent: and, as often as the conjecture of one party points one way, while the conjecture of the adverse party (both being in a state of affluence adequate to the maintenance of a suit) points the opposite way, a suit takes place, and the partnership have the benefit of it. 2. In proportion as, to him who, in the quality of eventual suitor, thinks of it, it appears to be, with reference to himself, unconjecturable; in that same proportion rises the obligation he feels himself under of having recourse to the professional lawyer, by whom that faculty of conjecturing, of which he feels himself destitute, is supposed to be possessed: here then, suit or no suit, so much business is made for the professional lawyer in that shape, in the character of law-adviser or opinionist, whose business it is in each case to form conjectures concerning what in that case will be the eventual decision of the judge. The judge’s mind the firmament; the opinionist the astrologer, whose horoscope points itself to that seat of supercelestial influence.

To accomplish the object of the partnership (his own of course included in it,) it is evident enough how easy, on this occasion, is the task of the judge. Appoint a place of meeting with a man, if in fact it be your wish not to meet with him, nothing can be more easy: a very slight deviation from the spot is sufficient to secure you against the misfortune it is your wish to avoid. By stepping aside but a little way out of the track of reason, a judge may thus be sufficiently assured of having placed his decision, and all future decisions capable of being built on the same ground, out of the reach of conjecture.

On this occasion he has but two purposes to accomplish; and neither of them very difficult to accomplish:—1. That the decision, with the ground he places it on, shall be irrational; and, 2. That, howsoever irrational, they shall not be in such sort and degree irrational, as that it shall be impossible to find for them any pretence which may serve to prevent their irrationality from presenting itself in its genuine colours to the eyes of the non-lawyers, whose interests are sacrificed by it.

The more unconjecturable, the more abstruse: the more abstruse, the greater the degree of sagacity and appropriate information (the sort of information called learning) which becomes requisite to the possession of any tolerable chance of pitching upon the eventual decision by a fortunate conjecture.

The more irrational, the more unconjecturable: the more unconjecturable, the greater demand for learning.

But, with respect to learning (whatsoever be the subject;) the more abstruse it is, that is, the greater the force of mind it is supposed to require, and to attest the possession of, the greater the admiration it is wont to excite.

Thus it is, that out of the sink of those iniquities, in which, if seen in their true light, they would have found a source of shame—of well-merited odium and contempt,—out of that same sink, they have contrived to draw a fund of glory. Out of the den of iniquity and nonsense dealt out blindfold, and in return for such dispensations, not wealth alone, but honour, wealth, and reverence, are poured into their laps by the deluded multitude.

The excrements of his body are the presents distributed by the Grand Lama to such of his votaries as he expects to find his account in honouring: jewels, gold, and silver, are the presents sent to him in return. The excrements of his brain are the dole distributed to the non-lawyer by the man of law; and the expected return comes to both impostors in the same valuable shapes.

§ 5.

Limits to the operation of the sinister interest.

The mass of mischiefs to which the authors of the technical system were led by the influence of this sinister interest to give birth, was not mischief in all shapes without distinction; the extent of it was bounded by certain exceptions, conditions, limitations.

1. The subject of depredation is the matter of property or wealth, considered as liable to be transferred from hand to hand by such means. If wealth in every shape had been destroyed, profit, judicial profit, would thus have been dried up in its source. Fees are the golden eggs: national wealth, the hen that lays them.

2. A lawyer, besides being a lawyer, is a man. He sleeps commonly in a house—he travels frequently on a road. Were any such misfortune to happen to the man, as that of seeing his house burnt, or feeling his throat cut, the sympathy of the lawyer would hardly be altogether idle. This is another motive for prescribing some sort of limitation to crimes in general, and more particularly to those more violent ones, of which, if too liberal an encouragement and indulgence were to be extended to them, the destruction of society would be a speedy consequence.

By the same principle by the action of which he is induced to nurse and encourage some sorts of misdeeds, he will be induced to aim with more or less energy and felicity at the prevention of others. The misdeeds he nurses, will be those from which he has most to gain and least to fear; the misdeeds he combats, will be those from which he has most to fear, and least to gain.

A great majority of the whole number of misdeeds have ever been, and will ever be, offences of the predatory class; and of these, again, a great majority will have for their authors a set of miserable wretches from whom little or nothing is to be extracted in the shape of fees. They will be, in a word, crimes of indigence—theft, highway-robbery, housebreaking, and so forth. Thus far, then, clients and suitors are hardly worth multiplying in the character of defendants. Moreover, the persons exposed to suffer by these offences are persons of all classes, poor as well as rich; and, taking persons of all classes in the aggregate, a great majority will be too poor to yield a mass of fees worth stooping for. Thus far, then, they are but little worth nursing and multiplying in the character of prosecutors.*

When a mass of property constitutes a stake contended for by two parties, or sets of parties, and that capable of being at an early stage impounded, or at any rate sure to be forthcoming; when an estate in any shape is at stake, and it can be so ordered that costs shall come out of the estate; this is the sort of cause worth nursing above all others.†

Taken together, the aggregate of criminal suits compose an object very little worth nursing, in comparison with the aggregate of non-criminal suits. Accordingly, it is in the former class of causes that the greatest regard will be manifested for the ends of justice—that most care will be taken for securing the conviction of the wrong-doer, the acquittal of the guiltless—and that the quantity of factitious expense, vexation, and delay, will be least considerable.

3. To the absolute and exclusive pursuit of the ends of judicature, the power of the legislature would always be an obstacle, resisting with a greater or less degree of force.

Of the abuses of which the technical system was naturally composed, some of the grossest and most intolerable would now and then be removed; and the idea of censure, and even punishment, how little soever to be apprehended by such hands and from such hands, could never in this line be altogether without influence.

But though, in the character of a check, as well as a remedy, this superintending power would never be altogether without its influence; yet, in the character of a bar, as well as a remedy, it could never be other than a very unsteady and inadequate one.

It was only because the hands in which the power of supreme legislation resided, were, in some way or other, in respect of some other necessary endowment more or less deficient,—that the task of laying down the rule of action could ever have been intrusted (or rather left and abandoned) to hands so essentially and incurably incompetent.

In this or that place he would be for a length of time (like John Doe) not to be found anywhere:* in one place he would be for a score of years together;† in another for a century or two,‡ in the state of a dormouse,—the day of his resurrection uncertain, or destined never to arrive.

When he exists, if he be a corporation sole, this corporation will be a puppet in the hands of some member of the fee-gathering partnership: no one else uniting the experience, industry, and reputation, necessary to the faculty of coping with a mass of accounts screwed up by ages of exertion to the maximum of intricacy.

If he be a corporation aggregate, the same causes will still operate to make him yield to the current against which his power should be as a dike: to lay him, more or less, at the mercy of those to whose enormities he should operate as a check.

Even though adequate knowledge and skill, as well as power, should not be wanting,—still the public affection by which he is urged to oppose the torrent, will be apt to prove but a feeble counterpoise to the strong and concentrated interest which gives motion to it.

4. To the sort of check last mentioned, the apprehension of popular discontent would always add another, though always one still more feeble. It is only through the medium of the legislature, that the people at large can act in this direction with any considerable effect; unless it be with such violence and irregularity, as to render the remedy worse than the worst paroxysm of the disease.

Even at the height of absolute or ill-checked power, reputation, it is true, can never be altogether without its value. But the opinion of the public at large can never operate as a check upon the enormities of lawyers, any further than as the people are in a condition to see through the artifices of lawyers: and so completely has the field been every where rendered impenetrable and repulsive to unlearned eyes, that the people, be their sufferings ever so acute, know not so much as to point to the seat of the disease, much less to choose and call for an appropriate remedy.

Success has long ago crowned the machinations of the man of law. The ends of justice have been thrust by him out of sight. Spurious ends, adherence to this or that pernicious prejudice, have been set up in their stead. These spurious ends have been habitually passed upon the people for the legitimate ends. The Baal to whom his priesthood bow the knee, the people have been taught and have learnt to worship as the true God.

What the effect of the law may be upon the fate of some individual, who at the moment happens to be an object of popular favour or disfavour, is the only sort of law question in which the great body of the people are apt to take any very strong or steady interest. So the point of the day be gained,—at what expense it is gained (I mean at the expense of what mischief done to the whole body of the laws,) is no concern of theirs.*

5. To the above checks, which, with more or less efficacy, operate all over the civilized world (for throughout the whole of that extent spreads the plague of technical judicature,) English jurisprudence adds one peculiar to itself. As, in another line of practice, thief is sometimes caught by thief,—so in this one it has happened, in more instances than one, that one abuse has received a sort of correction from another.

Subordinate judicatures of narrow extent excepted, originally there was but one court for everything. Business everflowing, a division was made (such as it was) of the field of judicature. The line drawn, or attempted to be drawn, being not geographical, but metaphysical, the limits were of course, in a multitude of points, obscure and ill-defined. Four great shops, with a quantity of custom allotted out for each, were opened at once for the sale of that commodity which went by the name of justice: four great shops; the original universal shop, with the king at the head of it, being parted off into four quarters for that purpose. Honest men might have found difficulty enough in settling which belonged to each: these men strove might and main, each of them to steal what, to the knowledge of every man, and of himself more particularly, was the indisputable property of his next neighbour. No contrivance, no wickedness, was spared. Mendacity, being the weapon everybody was most expert in the use of, was employed by everybody. The natural arbiter, the king, looked on and stared. Parliament, sometimes in existence, sometimes in abeyance, never acting but upon the spur of some pressing or rather excruciating exigence, either thought nothing of the affray, or knew not what to think of it. Universal lasstitude put at length a period to the war, by a sort of uti possidetis. The brethren parted like two fish wives, each with a handful of the spoils of her antagonist in her hand.

Be the cause of this chance-medley what it may; the result has been, that, for a considerable part of the aggregate stock of commodities taken together, the suitor has two, or even (for some articles of it) three, shops, among which to take his choice. From the competition, it has been supposed that, in the case of this as of other branches of trade, the customer derives a considerable advantage. Each shop stands engaged by interest to vie with its rivals, either in respect of the cheapness, or in respect of the goodness, of the articles in which they deal. The principle which operates as a cause of this benefit—of the service thus rendered, or supposed to be rendered, to the ends of justice, may be termed the double-shop, or rival-shop principle.

The advantage, such as it is, flowing or supposed to flow from this principle, seems to be attached, if not in an exclusive, at least in a pre-eminent degree, to the fee-gathering system. Supposing the retribution given in the shape of a fixed salary, the motive of love of reputation (it is true) might act with a certain degree of force, in the character of a cause of exertion; but suppose it to present itself in the shape of fees depending upon the number of suitors, and thence, in a certain degree, upon the reputation of the court, there would still be the love of reputation, and the more substantial motive, the love of fees, besides.

The advantage, such as it is, is well worth consideration: not the less, as being the only one (and that altogether casual and undesigned) which the fee-gathering system has to set against so many pernicious consequences as have been already under review.

That it is not altogether imaginary, seems indubitable; but it applies not with equal force to all the ends of justice. The way in which it is of use, seems to be by diminishing the probability of misdecision, to the prejudice of the plaintiff’s side. It being the interest of the judge to draw into his court as many suits as he can, and the party on whom it depends whether the suit shall be instituted in one or other of the two courts being the plaintiff,—he will, in proportion to the quantity of emolument at stake, be stimulated to exert his faculties in the endeavour to render justice in favour of that side.

§ 6.

Vices of established judicature, how far the effect of design.

Though, of so many unjust rules and practices as the system of regular procedure teems with, or rather is composed of, there is not perhaps a single one that is not in some way or other, directly or indirectly, subservient to the actual and false ends of judicature,—it would be an error to suppose that in every instance the mischief has been the fruit of design on the part of any one of the authors; much less of a general concert, official and professional.

The leading features having been traced by design,—a large part, perhaps in bulk the lugest, may easily have been filled in by imbecility and indifference.

Imbecility (understand always relative imbecility) was a natural consequence of the original choice made of the sinister ends. To delude the other branches of the government, and the people in the character of suitors, it was necessary that the real mischief underneath should receive a covering of apparent good, from something wearing the name of reason. The nature of things not affording any good reason, a bad one was to be fabricated. But the same sinister interest that produced the fabrication of the bad reason on the part of one man in the character of judge, produced the adoption of it on the part of his colleagues and successors: and to adopt the bad reason with as little violence to conscience as might be, it was necessary to take that course which is taken by all men under the influence of sinister interest, viz. to turn aside from all considerations tending to evince the absurdity of the doctrine—to pin down the attention to all considerations tending to conceal the absurdity from view. When the practice is completely absurd and mischievous, without a grain of utility among its effects, the considerations tending to show the absurdity of it will be all the considerations belonging to the particular case in hand: the considerations tending to conceal the absurdity of it will be those general considerations which for this sort of work compose the standing stock of instruments: the great learning and venerable character of the prime author (known or unknown)—the difficulty of fathoming the depths of the science—the danger of forming a hasty conclusion from the superficial and partial appearances presented by a first view—the observation, that when, in consequence of any such hasty and incorrect views, alterations have been made, the mischief of the alteration, and thence the wisdom of the preceding practice, has been manifested by subsequent experience.

It is in this way that, as in religion, so in jurisprudence, there is no absurdity so gross as not to have found its zealous, and in a certain sense even its disinterested, defenders: for,—howsoever the habit of false reasoning may have had, at its origin, the influence of sinister interest for its efficient cause,—yet, when once in train, it is driven on by the vis inertiæ in the beaten track, till at length it acquires an independent existence, having lost all recollection of the impure source that gave it birth.

Thus it is that, in all that train of reasoning which exercises itself over the particular field in question—in all that quarter of the psychological frame, a sort of local palsy establishes itself: a habit of imbecility, a distempered relish for the convenient absurdity, a nausea for inconvenient truth.

This partial sort of mental palsy is not incompatible with an ordinary, nor even with an extraordinary, degree of strength in the other part of the mental frame. The Herculean mind of Johnson, driven to the confides of insanity by the veteres aviæ that had taken possession of his bosom in early youth, laboured under a palsy of this kind, and had lost the faculty of reasoning on certain topics connected with religion, as may be seen in the hints given by his biographers.

Alchymy, judicial astrology, judicature under technical procedure,—under these names may be seen so many systems of profit-seeking imposture: alchymy, the art of cheating men on pretence of making gold; judicial astrology, the art of cheating men on pretence of foretelling future events; judicature (under technical procedure,) the art of cheating men on pretence of administering justice.

That among alchymists and judicial astrologers there have been those who have been dupes to the impostures by which they profited, cannot be doubted. That, among technical lawyers, prejudice, and the concealed workings of self-interest, have been productive of the like illusion, is equally indubitable. Between the company of dupes, and the fellowship of hypocrites, who shall draw the line? No one under omniscience. And to what use would it be drawn? To none whatever. On the physical ground, how often must the dupe and the impostor have been counted in one person,—a dupe at the commencement of his career, an impostor in the progress of it! The same delusions by which he had been himself deceived, would, after the cloud was dissipated, and when the jargon had become sufficiently familiar, serve him for propagating the delusion to other minds.

Thus on physical grounds. And what is there that should render it otherwise on the moral?

Neither on any of these grounds are the characters of dupe and impostor incapacitated from meeting in the same person at the same time.

The alchymist sells the art of making gold: what he knows is, that as yet he is not himself in possession of that art: what he is not yet satisfied of, is, that no other artist has ever been, or has had any reasonable hope of being, more fortunate.

The astrologer foretels future events.—What he cannot but know, is, that the event has belied the predictions hazarded by him in former instances. What it may be that he is not yet satisfied about, is, that the fault lies not in the artist, but in the art.

What, under the system of technical procedure, the judge cannot but see, is, that the decisions he pronounces are frequently, the course of procedure to which he sees the suitors confined is constantly, in a state of repugnance to the ends of justice. What it is possible he may not see, is, that this repugnance is the work of his predecessors in power and office—that it has not its root in the nature of things. To the ends of justice, from his first entrance upon the career, he has never been accustomed to turn his eyes. The objects, the only objects, towards which he has been accustomed to look with any degree of complacency, are the principles and rules actually established: established, probably under the pretence, possibly under the notion, but, whether pretence or notion, certainly false, of their being so many means conducive to the true ends of justice. Are they really thus conducive? A proposition this, which he has ever found it altogether easy and convenient to assume and take for granted; not at all easy, and altogether inconvenient, to inquire into. For appearing to regard them as being thus conducive, as being practically necessary, to the ends of justice, he has as good a pretence and (as towards the public) a justification, as heart can wish: he has the unanimous certificate of all those who are generally supposed to know, or to be capable of knowing, anything about the matter. That the decisions prescribed by the system he pursues are, in abundance of instances, repugnant to the direct ends of justice, is a truth continually before his eyes: what he does not see is, that there exists any other system, by the observance of which the frequency of such repugnance would be diminished. How happens it that this better system is never seen by him? Because there would be no profit, no pleasure, nothing but difficulty and toil, in looking for it; no profit, no pleasure, nothing but shame and fear, in finding it.

Under his eye lies the natural, the summary system, in all its various branches; in which such unjust decisions cannot but be incomparably less frequent, since in them there are not any rules, as in his system there are so many rules, the effect of which (as far as pursued) is to render such injustice necessary. There it lies under his eye: but what is there, that to any use, with any reference to his own practice, should engage him to bestow a glance upon it? On what part could he turn his eyes that would not publish to him his own shame?

To sum up the result of the foregoing observations:—what may be open to doubt is, in what degree, on this or that occasion, this or that individual may have been actuated by a deliberate intention to sacrifice the ends of justice: how much of the effect may have been produced by the direct and acknowledged operation of the sinister interest, how much by the unperceived influence of a prejudice produced by the unperceived operation of that interest, how much by honest blindness and negligence. What does not admit of doubt is, that, supposing such to have been the views and wishes, they could not by any other arrangements have been more fully accomplished, than they have been by these existing ones.

§ 7.

Recapitulation.

That the conclusions resulting, though but in the way of corollaries from the above survey, may be placed in a distinct point of view,—a few propositions, by way of recapitulation, may in this place be not without their use.

1. That,—in so far as it has departed from the practice of the courts of natural procedure,—the practice of the courts of technical procedure, the practice of all the courts in the kingdom (the above excepted,) is completely and radically unconducive and repugnant to the professed and supposed ends of their institution, the ends of justice.

2. That, in the mind of the judges (howsoever it might have been in the mind of the legislator, so far as the legislator has interfered in the ordering of it,) it never has, unless comparatively speaking of late years, been directed to those ends.

3. That the ends to which it has been directed have been the procurement of the maximum of profit, combined with the maximum of ease, immediately to the judges, and intermediately to the several other classes of lawyers.

4. That, to the purpose of the collection of this profit, lawyers, all classes taken together, with the judges at their head, constitute a virtual partnership.

5. That, of this departure from the ends of justice, the consequence is perpetual injustice: injustice in every one of its shapes, and in every one of them to a prodigious amount: failure of justice and misdecision to the prejudice of the plaintiff’s side; misdecision to the prejudice of the defendant’s side; vexation, expense, and delay, all factitious, and manufactured in prodigious quantities, on both sides.

6. That the judges of modern times,—not having had any concern in the forming of the system, but taking it as they found it, and being bound to pursue it throughout, except in so far as any alteration may come to have been made in it by competent authority,—reap the whole benefit of its depravity, without incurring either reproach or danger; and that, though constantly occupied in the working of injustice in all its shapes, they are not in that respect chargeable with criminality in any shape, or with any the slightest misdemeanour; the mischief they are continually occupied in doing, being done not contrary to law, but according to law.

7. That, in this perpetual fabrication of mischief and distribution of injustice, there is nothing in any way inconsistent with that perfect purity and uncorruption which has so long been regarded as a characteristic, and perhaps, in the degree in which it is possessed, the peculiar virtue of an English (say also British) judge: the measure of profit regularly received by those judges according to law, being probably greater than, under the most corrupt administration of justice in any other country, was ever received by judges of the like rank in the way of bribes, and contrary to law.

8. That, being not only authorized, but bound, to pursue the course marked out by the established system as it is, it would, in the instance of any individual judge (in so far as he keeps to that course,) be a question equally useless, invidious, and indeterminable, how far, in his own conception of the matter, he pursues the ends of justice,—how far (if in any degree) he pursues the established ends of judicature, as above delineated.

9. That,—howsoever it may be to be regretted that, in the midst of such a heap of abuse, to which, in one way or other, conscious or unconscious, they were continually adding,—neither the whole order of judges, nor one member of that order, ever exhibited symptoms of any serious desire, by their own authority, or by application to the superior source of power, to apply any considerable and efficient remedy; yet (in so much as no such obligation has ever been imposed upon them by any official oath, or otherwise by any positive law) the question, whether, on the score of such forbearance, any blame, even of the mere moral cast, can justly attach to them (for legal blame is altogether out of the question,) would be another question alike useless and invidious.

10. That, in so much as, by any such interference, every person in that high station would have more or less to suffer, and no person, in the way of ordinary interest, anything to gain,—the wonder that no such interference has ever hitherto taken place would be a wonder, the expectation that such interference should ever generally take place would be an expectation, repugnant to universal experience and common sense.

11. That, though in the legislative body there be power abundantly competent to a complete system of reform, in this as in every other line of abuse; yet, inasmuch as, on the part of any individual person within, any more than without, that body, there exists neither obligation, nor adequate inducement in any other shape, either to propose any such system, or any the smallest portion of it, or ever to look into the actually existing system in any such point of view; neither matter of blame, nor matter of wonder, on this score, is to be found in the instance of any individual member of that supreme body, any more than on the part of any member of the legally exalted though subordinate body above mentioned.

12. That, by no institution which should have for its professed object the propagation of vice, could vice (in three of its most pernicious shapes, mendacity, insincerity, and injustice) be more assiduously or successfully propagated, than it is by and for the profit of the principal courts of justice. And of what vices? Not those of which (as in case of drunkenness) pleasure is the sure and present, pain but the future and contingent, fruit; but those of which pain, present and future, pure and unmixed evil, is the result.

13. That the practice of the courts of natural procedure is not subject in any respect to such imputation: that, in and by those courts, should vice in any shape be manifested or propagated, it never can be manifested or propagated—should injustice be ever committed, it never can be committed—without exposing the delinquent to contingent punishment, as well as to certain and immediate shame. Delinquency, at the worst, is comparatively rare: and if punishment in case of delinquency be not there so certain as it might be, the fault lies in the practice of those superior courts, in and by which alone such punishment could be inflicted.

14. That, in the character of schools of absurdity, the practice of the regular courts, and the discourses by which, under the name of reasons, it is explained and defended, exercise no less pernicious an influence over the public understanding, than, in the character of schools of vice, they do over the public morals.

15. That the practice of the courts of natural procedure is as free from absurdity as it is from vice.

16. That, against the mal-practices committed by individuals under the system, no tolerably efficacious remedy can be applied by the punishment of those individuals—that the root of the evil lies in the system itself—that the mischief done by violation of the rules, bears no proportion to the mischief done by the observance or under the sanction of the rules—and that, under the system, no mal-practices ever were, or ever can be, committed, which it has not been the tendency at least, if not the object, of the system, to engender and to nurse—that any misbehaviour of the pupils is the fault immediately perhaps of the pupils, but originally of the school—and that it results only from their having followed too closely and incautiously the sort of instruction they had received.

Hence the injustice of imputing any especial or peculiar personal blame to this or that individual functionary, on the score of his having, on this or that occasion, pursued the dictates of that sinister interest which the system itself, in the state in which he found it, planted in his breast.

The fault lies not in the individual, not in any peculiar taint of improbity seated in the bosom of the individual, but in the system itself—the system into which he enters, and under which he acts. Amend the system, you amend the individual. Render it his interest to pursue the ends of justice, the ends of justice will be pursued; the ends of judicature will be brought to a coincidence with the ends of justice.

Hence, also, it may be inferred, that the more powerful the sinister interest planted in every bosom without exception by the corruption of the system, the more substantial is the merit, the more brilliant (in proportion as that merit is understood) will be the glory of the few, should any arise (more than few there cannot be,) in whom the force of that sinister interest should have found a superior and opposite force strong enough to overpower it.

In vain would any individual of any of the classes in question exclaim, You have thrown obloquy on the profession; you have, in as far as depended on you, covered it with infamy, and that infamy falls upon me, however honest my character, however irreproachable my conduct.

My answer is, I have done no more than to state the strength of the temptation under which you act; to state (what is matter of history, written upon the face of the system) how weak, if any, the resistance which that temptation has experienced from those who have gone before you.

The task I have been labouring in, according to the measure of my strength, is no other than the sort of task which has been performed, and with so much applause from the public, by so many public committees and commissions under the authority of the state; bringing to view the opposition that has taken place between the interest of the public in respect of the branch of administration in question, on the one hand, and the interest of the functionary, on the other; and the system of conduct to which, to the prejudice of that branch of the public service, that opposition of interest has given rise.

Of the infamy, not a particle can fall upon yourself but from your own choice. Confess the viciousness of the system, or defend it. Confessing its viciousness,—the greater its viciousness, the greater your merit and your glory. Defend it, if to you it appears defensible; remembering always, that by defending it you make it your own; and that, after your defence, in whatsoever eyes the system will appear vicious, after all, and indefensible, the viciousness of the system will be the ignominy of the advocate.

Hence, also, the absurdity and mischievousness of any opinion which could call upon the author—upon any one who shall undertake the task he has undertaken, to spare the system in consideration of the station of the persons acting under it: to suppress truths of the first importance, in consideration of any displeasure, of which, in such exalted breasts, the doctrine may naturally be expected to be productive.

Hence also, supposing the existence of the sinister interest established, the incongruity and absurdity of paying any regard to opinion, mere general declaration of opinion (as contradistinguished from argument,) delivered by any person acting and speaking under the impulse of a sinister interest of such mighty force. Separated from argument, the value of such opinion will not be simply nothing, but negative; operating on the side opposite to that in favour of which it is delivered. The more strenuously an existing arrangement is in this way defended, the stronger the presumption afforded of its being beneficial to the administrators of this corrupt system, which is as much as to say, pernicious to the community at large: the more strenuously any new arrangement, proposed in the character of a remedy to the abuses of that corrupt system, is opposed, the stronger the presumption thereby afforded of its utility.

There is yet another circumstance, by which the value of any opinions of this description (if they had any) would be diminished, not to say, done away. In the quarter from which such opinions are supposed to come, there exists, of necessity, the most thorough knowledge of all the matters of fact, out of which just ground of defence in the one case, of opposition and censure in the other case, are capable of being made. All the materials of defence that the subject furnishes—all these materials of defence (if any such exist,) are constantly at your elbow: the handling them, turning them about, and, at a moment’s warning, making application of them to any given purpose at command, is the constant occupation of your whole life. With so mighty an advantage in respect of the materials for making an appropriate and proper defence, if the nature of the case admits of any,—do you, notwithstanding, betake yourself to generals, and confine yourself to generals?—to a sort of argument equally at the command of the best cause and the worst? Confining yourselves to such arguments, you give judgment against yourselves.

[* ]The judges are now paid by fixed salaries, but the subordinate functionaries are for the most part remunerated in the manner mentioned in the text, the amount of the fees being regulated by the judges.—Ed.

[* ]What a blessing, could judges have contented themselves with increasing fees in a direct and open way, without making business, or, at any rate, without making delay for the sake of making business! Take an example of this abstinence.

In equity, in a subpœna ad respondendum (that sort of instrument by which a man is called upon to take upon himself the character of defendant,) the number of names on the same parchment, originally unlimited, was reduced afterwards to three. In Lord Chief-Baron Gilbert’s time, before and consequently exclusive of stamps, expense before the reduction, 6d. per defendant; after it, 1s. 2d.: difference, 8d.

Gilbert’s reasons for the reduction:—Reason 1. Preventing a plaintiff from making a man defendant for the sake of vexing him;a —the parchment never going out of the office, nor the defendant, unless by accident, knowing anything about the matter. The works of Gilbert are a very galaxy of reasons; all of them of this stamp: the same logic, the same sincerity. Ex pede Herculem: and Gilbert is a very Hercules among lawyers. For the pleasure of frightening an adversary with an equity suit, sixpence would not be grudged by Irus; eightpence more would by Crœsus.

Reason 2. Preventing the mistakes, which would result of course, were an attempt made to write upon the same parchment any more names than three. “In the multitude of counsellors there is safety:” and it is the same with parchments. But juries? . . . Four and twenty names always on the same parchment: quære, howmany mistakes?

In the character of a specific against the appetite for creating vexation,—the virtue of eightpence disbursed, eight-pence once paid, irresistible. In the character of a final or efficient cause of made business,—the virtue of the same sum received, repeated every day, and any number of times in every day, imperceptible. Behold what it is to have learned eyes!

[† ]Like causes produce everywhere like effects.

Extract from the speech of Lord Henry Petty in the House of Commons (Morning Chronicle for 22d May 1806:—)

“The matter was so contrived” (viz. under the existing establishments for the auditing of the public accounts,) “that the fees of the different officers depended on the number of accounts which they passed, so that he who was determined to do his duty strictly, and to examine narrowly into any accounts that came into his hands, was left almost without any business or fees; while he who was most negligent of his duty, who passed accounts without being very particular as to the justness or amount of the charges, was in high employment, and had his office crowded with accountants and with fees. If the vouchers were regularly drawn up, this was all that was here required. No particular inquiry was made as to the nature of the vouchers, and the manner in which they had been procured. The consequence certainly was, as may be presumed without fear of being in error, that great frauds and abuses were committed. Under these circumstances, the right honourable gentleman now no more, to whom I before adverted, saw that some change was necessary in the management of the public accounts, and, accordingly, in the year 1785, a bill was brought in, appointing five commissioners for the administration of the public accounts.”

Amongst the objects of the inquiry instituted in 1792 by a committee of the House of Commons on the subject of imprisonment for debt, was that of the number of premature deaths produced by the abuses connected with that practice. No proposition in history is more completely out of doubt, than that this practice was set on foot by the judges, in the teeth of the then established law, to serve as an instrument of extortion in their hands.

Were it possible to distinguish from other deaths, those which had for their cause the rapacity of those official guardians and protectors of life and liberty,—to distribute the imputation of the misery in due proportion among those by whose power it has been produced, and by whom the profit of it has been reaped,—how innoxious would the murderer appear, in comparison with the judge from whose lips he receives his doom!

[* ]This was put an end to in 1654. Scobell, c. 36.—Ed.

[* ]What is here said of the use of lies must not be understood without distinction. There are lies which the interest of the judge has called upon him to punish; there are lies which his interest has called upon him to cherish. Where the line of distinction ought to be, and accordingly where it has been, drawn, will soon be shown in its place. But, on condition of observing a distinction which has never yet failed to be observed, the encouragement given to lies is one of the most useful of thosemain branches, which we shall presently have occasion to display, of the art of making business.

[* ]See farther on this subject, “Justice and Codification Petitions,” (Vol. V. p. 467.)

[† ]At the Old Bailey, in a case of theft, the same day has seen the offence committed, and the malefactor apprehended and definitively convicted: while in the Court of Chancery, if so it happened that a man who by a fraud had got possession of an estate, was disinclined to part with it,—a decree being, after a certain or rather uncertain number of years, obtained, another year was employed in “spending the process of the court,” before the effect of the decree could be obtained—before “the plaintiff could have any effect from the suit;”a the defendant having that time given him to spend the plaintiff’s money, while the partnership were feeling upon both.

The court had a certain quantity of process, which was to be expended; and till the expenditure was consummated, neither justice, nor so much as a semblance of justice, was to be had:—a certain quantity of “process to be spent;” that is, among a certain set of officers, a certain mass of money to be distributed in the shape of fees. Could the harpies but have been let in upon the carcase all at once!—but decency forbade: appearances were to be kept up.

In French judicature, in the case of those crimes which are most frequent and most formidable (such as theft, house-breaking, highway robbery, murder on the occasion of robbery,) if the defendant were insolvent, the costs were borne by the king, or the grantees by whom the burthen and benefits of judicature were shared. In France, accordingly, criminal suits were frequently no less dilatory, no less expensive, no less profitable, than civil ones. In England, individuals, in the character of prosecutors, bearing their own costs,b and little being to be got from the vulgar herd of malefactors, the general interest prevailed over the particular official and professional interest; and, in comparison with criminal causes under the French system, and non-criminal under the English, criminal causes, such as the vulgar herd of malefactors are most apt to be concerned in, are undilatory and unexpensive. In comparison,—viz. with what is the practice in those other instances—for as to what it might be in the same instances, the case is widely different,—factitious delay and expense are sufficiently copious.

[* ]England before Henry III.

[† ]England at various times during the cessation of Parliaments.

[‡ ]France and Spain.

[* ]See Wilkes’s case, infra, Chap. XIV. Nullification.

[* ]What a blessing, could judges have contented themselves with increasing fees in a direct and open way, without making business, or, at any rate, without making delay for the sake of making business! Take an example of this abstinence.

In equity, in a subpœna ad respondendum (that sort of instrument by which a man is called upon to take upon himself the character of defendant,) the number of names on the same parchment, originally unlimited, was reduced afterwards to three. In Lord Chief-Baron Gilbert’s time, before and consequently exclusive of stamps, expense before the reduction, 6d. per defendant; after it, 1s. 2d.: difference, 8d.

Gilbert’s reasons for the reduction:—Reason 1. Preventing a plaintiff from making a man defendant for the sake of vexing him;a —the parchment never going out of the office, nor the defendant, unless by accident, knowing anything about the matter. The works of Gilbert are a very galaxy of reasons; all of them of this stamp: the same logic, the same sincerity. Ex pede Herculem: and Gilbert is a very Hercules among lawyers. For the pleasure of frightening an adversary with an equity suit, sixpence would not be grudged by Irus; eightpence more would by Crœsus.

Reason 2. Preventing the mistakes, which would result of course, were an attempt made to write upon the same parchment any more names than three. “In the multitude of counsellors there is safety:” and it is the same with parchments. But juries? . . . Four and twenty names always on the same parchment: quære, howmany mistakes?

In the character of a specific against the appetite for creating vexation,—the virtue of eightpence disbursed, eight-pence once paid, irresistible. In the character of a final or efficient cause of made business,—the virtue of the same sum received, repeated every day, and any number of times in every day, imperceptible. Behold what it is to have learned eyes!

[† ]At the Old Bailey, in a case of theft, the same day has seen the offence committed, and the malefactor apprehended and definitively convicted: while in the Court of Chancery, if so it happened that a man who by a fraud had got possession of an estate, was disinclined to part with it,—a decree being, after a certain or rather uncertain number of years, obtained, another year was employed in “spending the process of the court,” before the effect of the decree could be obtained—before “the plaintiff could have any effect from the suit;”a the defendant having that time given him to spend the plaintiff’s money, while the partnership were feeling upon both.

The court had a certain quantity of process, which was to be expended; and till the expenditure was consummated, neither justice, nor so much as a semblance of justice, was to be had:—a certain quantity of “process to be spent;” that is, among a certain set of officers, a certain mass of money to be distributed in the shape of fees. Could the harpies but have been let in upon the carcase all at once!—but decency forbade: appearances were to be kept up.

In French judicature, in the case of those crimes which are most frequent and most formidable (such as theft, house-breaking, highway robbery, murder on the occasion of robbery,) if the defendant were insolvent, the costs were borne by the king, or the grantees by whom the burthen and benefits of judicature were shared. In France, accordingly, criminal suits were frequently no less dilatory, no less expensive, no less profitable, than civil ones. In England, individuals, in the character of prosecutors, bearing their own costs,b and little being to be got from the vulgar herd of malefactors, the general interest prevailed over the particular official and professional interest; and, in comparison with criminal causes under the French system, and non-criminal under the English, criminal causes, such as the vulgar herd of malefactors are most apt to be concerned in, are undilatory and unexpensive. In comparison,—viz. with what is the practice in those other instances—for as to what it might be in the same instances, the case is widely different,—factitious delay and expense are sufficiently copious.

[a ]Gilbert’s Forum Romanum (Chan.) 39.

[a ]Gilbert, Forum Romanum, ch. v. pp. 84, 85.

[b ]Prosecutors and their witnesses are not allowed more than 3s. 6d. a-day for their attendance, except in particular cases.—Ed.