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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 IV.

PARTICULAR EXEMPLIFICATIONS OF THE VICES INTRODUCED BY THE FEE-GATHERING PRINCIPLE INTO TECHNICAL JUDICATURE.

In the ensuing chapters, the business will be, to bring to view the principal devices constituting so many leading features of the technical or fee-gathering system of procedure, in the character of effects produced by the operation of the sinister interest on the authors. But, before we proceed to the enumeration and delineation of these several features considered in a general way, as produced by the operation of that corruptive principle, it will serve for illustration as well as for proof, if a view be given of the operation of the principle in particular instances—a particular portion of delay, vexation, and expense, produced on a particular occasion, on the part of the suitor, through the medium of a particular rule or course of practice, produced by a particular sum of money, operating, in the character of a principle of corruption, on the bosom of the judge in whose decision and habits of procedure the practice took its rise.

In many of these instances (to say no more,) as the practice itself, so the mischief of it, stole on at an imperceptible rate: being, therefore, not the work of any one judge or judges to the exclusion of the rest, the effect produced by the operation of the sinister interest is rather the preservation of the practice, than the generation of it. If so it be (and surely it will not be otherwise) that, of those by whom the benefit of the abuse has been reaped, no one can ever have failed to recognise the mischievousness of it, the repugnancy of it to the ends of justice; on the other hand, neither is there any one who can have recognised in himself the author of it: the benefit is enjoyed by all: of opprobrium, scarce a particle has ever yet been reflected by it upon any one.

I. Sham writs of error—King’s Bench an open delay-shop.*

Exemplification the first:—

Justice delayed by sham writs of error: a sort of instrument whereby a party (almost always a defendant) against whom a judgment has been obtained in a court below, appeals to a superior court, alleging the erroneousness of such judgment.

The official custos morum of the nation, concurring with six hundred men in a year, in the defrauding of so many creditors, by uttering so many false pretences, by which he gets so much a-piece: while, for a fiftieth part of the money, obtained by each on a single false pretence, wretches are hanged or transported by this same guardian of the public morals, by scores and hundreds.

Writs of error, 1,809 in three years, whereof only 19 argued. What is certain is, that, in the 1,790 in which there was no argument, the non-existence of the alleged error was no less perfectly known to the licensed liar by whom the existence of it was asserted, than to his injured adversary. What is not certain (speaking always upon the face of this account) is, that, even of the 19 that were argued, there was so much as one that was in the other case.

Be it not supposed, that, from the difference between the number sued out and the number argued, any interence can be drawn one way or the other concerning the probity and wisdom of judges,—the proportion between cases of right decision and cases of misdicision,—and the proportion between the number of the instances in which the losing party goes away satisfied, and those in which he goes away dissatisfied, with the conduct of the judge. The 1,790 were almost all, if not all of them, so many cases in which there was no real question between the parties—cases, in which the justice of the demand was no more a secret to him that resisted it, than to him that made it. The delay-shop, the injustice-shop, stood open; he went in and bought the goods, because, after paying the price, there was a nett profit upon the purchase.

As little be it supposed that the £1,434 forming the Chief-Justice’s share of the price of the delay on the writ of error account, was the whole of his profit upon the aggregate of the suits—the whole of the profit produced to him by this point of practice. Of these 600 suits in a year, each yielding a writ of error for delay,—but for the delay thus purchaseable, perhaps not one would have come into existence. In each of these instances, the year’s delay yielded by the writ of error was preceded by a quantity (perhaps, upon an average, about an equal quantity) of delay manufactured in the course and by means of the suit to which the judgment thus appealed from professed to put an end. If the suit by appeal had no question in it, it was because the original suit had no question in it. Whether they would or would not have been defended, and so kept up, had it not been for the assurance of the twelvemonth’s delay after judgment,—these 600 original suits were so many malâ fide suits (malâ fide on the part of the defendant,) generated by the technical system: so many suits that would not have had existence, had the ends of judicature, and the practice in conformity to these ends, been in a state of conformity instead of repugnance to the ends of justice.

Of all these 1,809 or these 3,618 suits (if 3,618, costing probably not so little as £20 a-piece.) not one that under the natural system of procedure (in the hands of a court of conscience, for instance, or of a justice of peace) would not, at the cost of a few shillings, or, if thought better, without any cost, have received its termination in a few minutes; instead of the half year or year for the single suit without the appeal, or the one and a half year or two years for the double suit,—original suit and suit of appeal together.

Can it for a moment be supposed that anything but will is wanting for the extirpation of the abuse? The remedy,—is it not almost too obvious to be named without an apology?

For a general rule,—the judgment being in favour of the plaintiff,—notwithstanding the appeal, let the judgment take its effect, just as if there were no appeal; security being found by the plaintiff for eventual restitution, in case of reversal or modification, according to the decision of the court above.

Cases may be found, in which, the decision of the court below being executed, and that decision erroneous, the damage might be irreparable. Damage to person,—a female delivered into the arms of a wrong husband; a minor, especially of the female sex, delivered into the power of a wrong guardian; Virginia made a prey to Appius. Damage to property,—a grove, the pride of a venerable mansion, a screen to the domain from blighting winds, levelled out of spite; any article endowed with a pretium affectionis destroyed by malice, or embezzled by concupiscence. Against these possibilities, precautions would need to be taken. But, even though no such precautions were practicable (and nothing could be more easily practicable,)—giving execution, in the first instance, to the decision of the court below, would still afford a better chance for ultimate justice, than would exist in the contrary case. Under the tardy pace of technical procedure everywhere, what tolerably effectual provision is there against accidents thus deplorable? Be the judge who he may, can there be more safety in ascribing corruption or culpable negligence to him, than ordinary probity and diligence? For if he be not either corrupt, or incapable to a degree calling aloud for dismissal (not to speak of punishment,) give him but the necessary power, he will take effectual care that, in case of the reversal or modification of his decision, no irreparable damage shall take place.

Thus upon general principles: laying the scene anywhere. Lay it in England; apply it to the courts in question, in the characters of court below and court above; nothing can be more evidently impossible than the sincerity of any such fears. By the fortuitous concourse of technical atoms, the King’s Bench happens to stand above the Common Pleas; but, on this occasion or on any other, who ever supposed that a grain more or a grain less of confidence was due to the one court than to the other? Of the whole assemblage of our judges, is there a single one that is not, in his turn, with no other check than that of a not unjustly obsequious jury, sole arbiter of life and death?

Were but the will present, where power is never wanting, there is no end to the expedients that might be proposed; the worst of them an improvement upon the state of things delineated above.

Good my Lord, accept the money, spare us but the injustice and the immorality: to the plaintiff, the loss and hazard by the delay—to the defendant, the expense of lying. Select any one of the annual six hundred injured plaintiffs, confiscate his property to the amount of the indispensable £1,434, pardoning the other five hundred and ninety-nine. Establish a lottery, the blank lots of which shall fall upon the sums due under the respective judgments, until the sum, for the purchase of which six hundred injustices are so well bestowed, be completed. Take up the list, begin with the most opulent, or (as is more conformable to precedent, and more congenial to prison fees) the most distressed. Nay, my Lord, there would be no end were a man to undertake to exhaust the list of commutations, the least beneficial of which would be an improvement; and such an improvement, that the stamp of Utopianism, which upon all of them is but too visible, threatens to render the acceptance of it next to hopeless.

Eight years ago* was a proposition made; but not a grain of the pound of flesh could ever yet be bated. Eight years ago the committee of finance laid their project. Being no less Utopian than the above, it underwent the fate of so many other of their projects. But as to this one, it will meet us in another place.†

By giving to such and such a judge, such and such sums of money, a man who owes another so much money, and knows it to be justly due, may purchase, with so much of his creditors’ money, the delay of almost a year: including the interest of the debt for that time, besides other advantages. Yet this on their part is not bribery. Why? Because they are not punishable for it. Suppose (for argument’s sake) they were punishable for it,—in what respect and degree would the mischief of that act of theirs, which then would be an offence, be augmented by such punishment?

When Lord Bacon was punished for taking bribes, his excuse was, that though he made justice pay more than he ought to have done, he never for money showed favour to injustice. That for which so much money is regularly taken by these his successors, is in every instance for favour shown to injustice—for money, known to be the plaintiff’s, put by them into the pocket of the defendant. Six hundred is the number of families in a year whose money they thus dispose of: at five to a family, three thousand persons, whose property they thus sell to wrong-doers at a fixed price.

All this I speak of with the utmost freedom and tranquillity. Why? Because, all this being legal, nothing of it being criminal, I am not punishable for speaking of it. Were I to see any one of them take a bribe, a punishable bribe—were I to see every one of them with his right hand closing upon the corruptive metal,—should I thus speak of it? I know better things: not they, but I, should be punished for it. The man whom the law of their creation punishes, is not the man who has stolen the sheep, but the man who has dared to look over the hedge.

II. Sham motions—Chancery an open delay-shop.

Exemplification the second:—

Delay sold in Chancery, on the following terms:

This if the defendant reside within 20 miles of London. If it be a country cause, that is, if the defendant reside beyond 20 miles’ distance from London, the rate is as follows:

If the bill be filed in the long vacation, or within seven days of the expiration of the term (Trinity) preceding it, the defendant is allowed till the term following to put in his answer; being a delay of upwards of two months, besides the additional 63 or 77 days obtainable by three successive applications, as above.

It commonly happens that by the defendant’s first answer a need is produced of further questions, under the name of amendments to the bill. To this demand it may happen to present itself any number of times: for it is only in this way that that security for correctness and completeness, which is afforded by the faculty of grounding questions upon answers, can be obtained at the end of a certain number of months; that security which, in an examination vivâ voce, as before a jury, may be obtained in so many minutes. The allowance of time on an amended bill is precisely the same as that on the original bill, except that a third application is not allowed. By every such set of amendments, therefore, a title is given to the defendant to purchase a further quantity of delay, to the amount following:—

The delay thus sold is altogether independent of all just cause of delay. Paying the price, it is as much at the command of him who has no just demand whatever for a moment’s delay, as of him who has ever so just a demand for a delay of ever so great a length. It is on this account that it is said, as with the strictest propriety it may be said, to be sold.

The case, and the only case, in which it is not sold, is where a special case is made for extra-delay, on some special ground. The supposed facts constitutive of the supposed ground are then brought before the court by motion not of course; supported by evidence (though in the incongruous shape of affidavit evidence,) with liberty on the other side to oppose, with or without counter-evidence in the same shape. The judgment of the court is in that case exercised, and, whatsoever may be the fees received, the term sale, if here applied, would be incongruous.

Price of the quantity sold at each motion of course:—

III. Sham notices called warrants—chancery offices delay-shops.

Exemplification the third:—

Delay not sold, but regularly made, by the subordinate judges in Chancery called Masters, for the purpose of extracting correspondent fees.

In the Court of Chancery, the masters are so many subordinate judges, cleven in number, by whom, each of them sitting singly in his closer, judicial decisions in great variety, and to any degree of pecuniary importance, are pronounced in the first instance. The master is attended by the solicitors (attorneys) on both sides: each attendance is preceded by a sort of summons or notice, addressed by the master, at the instance of the solicitor on one side, to the solicitor on the other side. This instrument is called a warrant: and for each warrant the master receives a shilling, a fee settled at a time when that sum was worth perhaps some number of times what it is now. By a custom which is never departed from, but of which the exact time of commencement is now inscrutable, no real attendance ever takes place till after the third warrant.‡ By an habitual connivance on the part of these subordinate dispensers of equity, for the purpose of trebling the emolument lawfully receivable by them, the quantity of delay is thus trebled to the suitors: to the proportionable distress of the suitors on one or both sides, according as the persuasion of the justice of a man’s cause is entertained on one side only, or on both.

For the more effectual attainment of the same ends, the quantity of time bestowed by the master at any one attendance is never more than an hour, but may be to any amount less. On these several occasions, what actually passes is no more to be known than what passes in the divan at Constantinople: but, by whatever cause the custom of three warrants for an attendance was produced, by the same cause, of course, the rate at which business is done, when the partnership are ashamed or afraid to put it off any longer, is regulated. As often as the suit affords a party who by dishonesty or insolvency is engaged to seek delay, here is an individual whose interest it is, that, on each attendance, the quantity of business done shall be as small as possible; and, whether the suit affords any such party or no, it affords two professional lawyers, whose interest it is, as well as that of the judge, that this maximum of delay shall be produced. Here, then, exists a corrupt interest, constantly acting upon a set of persons who are known to pay habitual obedience to it, and who, amongst them, without the smallest danger of punishment, or so much as shame, have it completely in their power to put themselves in possession of the corrupt profit which that interest invites them to receive.

Go any day you please into Westminster Hall, you may hear pompous eulogiums on the importance and essentiality of publicity in judicature. But the occasions in which publicity has place, are—what? Those in which it cannot be prevented. Those in which secrecy has place of publicity, are—what? Those in which it can be prevented: and to this latter description belong some of the most important among civil cases. Whatever abuse cannot be fastened upon justice, the absence of it is trumpeted forth with great ceremony. Regula generalis, touching mischief:—What you can do, do and profit by; what you can not do, take credit for not doing.

In a master’s office reigns perpetual darkness, and we see the consequence. Punishable corruption, probably none: unpunishable, naturally as much as possible. The thicker the darkness, the less the demand for anything in the shape of a reasonable soul, in the human flesh subsisting. In such a state of things, the natural course is, that, of that business, that judicature, which is said to be done by the master, a great deal should be in reality performed by the clerk.*

Lawyer.—What, sir! Do you dare to insinuate anything to the prejudice of the learning, the assiduity, the sound judgment, of gentlemen of such high respectability as—

Non-lawyer.—Indeed, sir, I do not dare do any such thing. To be sure, I have been in use to hear something “to this or the like purpose or effect,” so long as I have been in use to hear anything about Westminster Hall, or the Inns of Court, which may now be somewhat above sixty years, but, perhaps, if applied to any particular person, nothing of all this would be found to be true: and, if there were any person in particular of whom I thought it true, do you think you would catch me saying so? Indeed, sir, you would not. My business is with genera and species: to individuals, I make my bow.

What makes the practice the more valuable, in the character of an example, is the smallness of the fee.

Is it credible that a man in such high office, receiving so many thousands a-year, bearing so long a gown upon his shoulders, and so venerable a mass of artificial hair upon his head, indued consequently with so rich a stock of learning and virtue,—that a man so gifted should ever, in any single instance, be content to do so much mischief for a few shillings? Is it in the nature of a man so to degrade himself?

Whether in the nature of a man, is a problem I leave to philosophers. What is certain is, that it is in the nature of an English judge. A man—any man that ever breathed in such high office—do so much mischief for a few shillings?—and that in the very teeth of common sense and common honesty, and without the shadow of an excuse? A man? Why, they all do it, and for a single shilling: it is everyday’s practice: and the Chancellor and the Master of the Rolls, their superiors, know of their doing it, see them doing it, see them every day. So far from stopping it, did ever Chancellor, dead or living, ever let fall so much as the slightest token of disapprobation at the process going forward perpetually under his nose? How should he? What sense is there in expecting he should? Would you have the husbandman turn up his nose at the rottenness of the manure that is giving fertility to his fields? The present shilling of the master is the future shilling of the chancellor. As often as a master dies, the chancellor puts into the office whom he pleases. The £10,000 or £15,000 a-year of the chancellor, with its et cateras, and their et cæteras,—are not shillings the stuff it is composed of?

To this most highly and best rewarded of all lawyers, the value of every office to which he has the nomination is in the direct ratio of the emolument it brings, and in the inverse ratio of the qualifications it requires. The less capacity it requires, the more open it leaves his choice among his friends. The more emolument it brings, the more worthy it is of their acceptance.

Not that the situation of these learned subordinates has been altogether matter of neglect to their still more highly learned, and withal noble and honourable, principals.†

In the district called the Rolls there is a chapel, and in that chapel a catechism, in which, to the question—“Who is thy neighbour?” the answer is, the Master who sits next to me.

Court of Chancery, 15th August 1805.—Sitting, Lord Eldon. Purcell v. Macnamara. Morning Chronicle, Aug. 16.

Application for an order to the master, authorizing him to sit de die in diem, till the accounts between the parties were adjusted.

“Lord Alvanley had been of opinion that the master was authorized, and that it was his duty, without any order, to exercise his discretion in every case of the kind. Were his lordship of that opinion, he should think any order unnecessary, and therefore improper. When, however, he looked at the practice of the court for the last twenty-five years, and considered that hundreds of orders of the kind had been made within that period, he could not persuade himself that all of them had been granted for no earthly purpose, but must suppose, without such order, that the right of the master to do what was here required, did not exist. His lordship therefore granted the order to the master, subject to the master’s exercising his own judgment, having obtained the power to act, whether the circumstances of the case rendered it necessary for him to do so every day or not.”

The practice of the court, then, is so contrived (if the account thus given of it be correct,) purposely so contrived, that the master shall not have it in his power to make that distribution of his time, which, in the judgment of the only judge, who, with the power, has the facts before him, is conformable to the demands of justice. By the sham warrants, with their fees, a regular system of delay is organized. But, from this regular delay, by the motion for the de die in diem with its fees, an exemption is always ready to be sold. And what is it that at this price is purchased? Not any obligation on the subordinate judge, but a licence only, and pro hâc vice only, to do justice.

Here, then, we see a perpetual writ of injunction issued by the superior judge of the high court to his eleven subordinates, prohibiting them from doing justice. A prohibition on justice: and to what end? That, as often as a party’s impatience for justice is too strong for controul, an attempt may be made to purchase it at the expense of an incidental suit, carried on by affidavit evidence: a suit which, if needful, shall, for that once, render it so far possible to do justice.* Injustice established as a rule of practice, to produce motion causes with their fees, and such causes actually produced to the number of hundreds (how many hundreds is not said) in the course of five-and-twenty years.†

Such being the pattern set at the metropolis, it may be imagined whether imitation is in danger of being slack in the shade of a distant province.

On passing accounts before the court of grand sessions upon the Chester division of the Welsh circuits. “each side is to file its interrogatories with the registrar, and to take out three warrants, for the other side to be present at settling them” (six notices, to produce the effect of one,) “else on the third warrant the registrar proceeds ex parte.”* August 1789 is stated as the time at which this practice was perhaps instituted, more probably recognised.

Yet, in that same court,† the “course of equity proceedings is even more dilatory and prolix than in the high court of Chancery;” the little Welsh equity court being a sort of dormouse, that “must generally sleep ten or eleven months of the year;” the great high court a sort of sloth, which, though at its own pace, keeps on crawling almost the whole year round. Five or six times as much delay as in the grand warehouse of delay; and yet not enough for the appetite of learned travellers, without the extra portion attached to the sham warrants.

From the same school, take another specimen of the art of making business.

P. 114. “Where there is a replication, there must be a publication [of the evidence,] though no witness be examined;” i. e. though there is nothing to publish. To what end thus attack impossibility, and vanquish it? Answer: That the plaintiff may move (i. e. fee counsel to move) that that which cannot be done may be done. Take the passage at length:—“If defendant neglects to take it out and execute it” [a commission for the examination of witnesses,] “plaintiff may next circuit (i. e. next half year,) move for publication, though no witness be examined; for, where there is a replication, there must be a publication, though no witness be examined.” Here, too, we see a sample of equity logic, from the school of Gilbert and Blackstone. Take any arrangement that comes uppermost, the more irrational the better,—if you want a reason for it, write it over again, with a for before it. The use of such logic is, to enable such morality to pass without notice.

IV. Sham notices called distringasses—Exchequer a delay-shop.

Exemplification the fourth.—

A corporation, according to Lord Coke (who was not ill acquainted with them,) has no conscience. What is better, it has commonly a long purse. Problem, how to get the money out of it? Solution: By both these qualifications, it is so much the better disposed to the purchase of that delay, of which the court of Exchequer, as well as the other shops, has an assortment so perfectly at its service.

Is it your misfortune to have a demand upon a corporation? You must let off upon them three writs, or three pair of writs, one after another. By the help of these three writs, at the end of about seven or eight months the suit is just begun, the corporation having made what is called an appearance, that is, employed an attorney to act for them, but nothing as yet done. These three writs are worth beyond comparison more than the three warrants; but then there is an end to the writs, which there never is to the warrants.

Sum demanded, say £2,000. The writ is a command to the sheriff to levy so much money at the defendant’s expense, in the event of his not employing an attorney, as he ought. In your first writ you take care that the sum thus levied, or ordered to be levied, shall be a sum plainly inferior to the interest of the money in dispute, for the time which the defendant gains by taking no notice: a customary sum is 40s., and perhaps there is no other. Defendant not appearing, you are almost angry, and to show you are in earnest, you fee counsel to move for a larger sum, taking care not to be too hard upon him—say £20. The same cause preserving inviolate on the part of the corporation the same principle of passive disobedience, you are now quite angry; and to show you are not to be trided with any longer, you move a second time, get your third distringas, with your £50 worth of issues, for that is the phrase.

In Mr. Fowler’s account of the practice of the Court of Exchequer* (equity side,) are to be found three original and highly instructive cases, from which the above instruction was composed. Corporations squeezed:—1. Corporation of Bridgewater; 2. East-India Company; and 3. A free grammar school.

Average quantity of delay sold, between half a year and a year; after which the cause was to begin. Profit to the partnership, not discoverable. Care taken by the court in each case that the amount of the eventual mulet on the second order should not exceed £20, lest obedience to the second order should take away the pretence for the third. In two out of the three cases, a brace of writs were let off at a time.

Thus in the Exchequer, equity side. But, at common law, the art of dealing with corporations is not less completely understood. The same care to avoid precipitation; and the same tender caution not to bear too hard upon the corporation (though it has no conscience) a first and second time.†

A judge, who, with a wish to do justice, possessed power suitable,—can it be necessary to ask what in such a case he would do? he would send for an acting member of the corporation, the directing head, the writing hand, or any other (what difficulty soever they might find in settling the matter among themselves, there would be no more difficulty on the part of the judge in dealing with them, than with any one of them in his individual capacity;) and what was not done in the Exchequer, among so many learned hands, in six months, could be done in half as many minutes.

V. Sham representations—Scotland—Court of Session a delay-shop—Lord Ordinary the shop-keeper.

Exemplification the fifth:—

In Scotland, as everybody knows, no fewer than fifteen judges are occupied in obstructing one another’s decision, and frittering away one another’s responsibility, all sitting in one court.‡

As with most other functionaries, so with judges, in the calculation of common sense, the chance of right decision is (because responsibility is) in the inverse ratio of the number; in French calculation in the direct ratio: a thick quarto volume of calculations is built upon that ground. In France, sale of offices (and amongst others of judicial offices) was an object of revenue. Before she gave kings to England,—drawn by necessity, Scotland clung to France. French law shows through Scotch law in a thousand places.

Under this system of obstruction, lest suits should get through too fast, a sort of a turnpike was contrived, with one of their lordships, in quality of turnpike man, to stop the cause and take toll of the suitors, with the title of Lord Ordinary.

In no one sort of cause is he bound to give any decision; in some he is not allowed: in no cause is the suitor bound by his decision, should he have been pleased to give one: in some sort of causes, the suit, after regularly going up, as regularly comes down again, before anything can be done in it.

• The king of France with forty thousand men,
• Went up the hill, and then came down again.

This privilege of not judging, does he frequently avail himself of it? This would be worth knowing. If this modesty is general, the result is curious. Here is a court composed of fifteen judges, each of them, by his own acknowledgment, unfit to be a judge.

What! not take so much as a chance for giving satisfaction to the parties? Impose upon them purposely the most vexations lot that necessity can prescribe?

Supposing you to have got a decision of his lordship (called an interlocutor) in your favour, think you that a guess can be formed when the cause will terminate? Not it indeed. After receiving a fortnight’s delay gratis,* your adversary gives in a representation, and then the cause stops. Some time or other comes a second interlocutor, adhering to the first: stop again: and so on without end.

On each such representation, fee to his lordship’s clerk, 3s.; to the other members of the partnership, other fees: amount of each, and number in the whole, unascertainable.

Seeing, in the instance of masters’ warrants, what the power of one shilling was in England, an estimate may be formed of what (even were this all) the power of three may have been in Scotland.

Lawyers, of all men, are least given to the telling of tales out of school: the quantity of abuse that transpires is as nothing in comparison with that which is kept close. Here and there, by a momentary fit of pique or probity, an incident comes to light.

In the picture above given, is the character of Scotch justice injured? Hear from her own worshippers. First, let us hear from Mr. Russell how the matter stood in 1768.

1. “It is a common device of defenders who want delay, to suffer decreets to pass in absence against them, and then to offer a representation to the Lord Ordinary, praying to be heard in their defence. By this shift, the determination of causes is greatly postponed, and much unnecessary trouble is given to the Lord Ordinary in reading representations which contain nothing material to the cause.”*

2. “The party who is dissatisfied with an interlocutor must offer a representation to the Lord Ordinary, praying an alteration of the judgment, within ten sederunt days [amounting to a fortnight† ] of the signing of the interlocutor; otherwise the interlocutor shall become final, unless, &c.”

3. “Representation against decreets entirely in absence, may be permitted at any time, before extracting the decreet.”‡

4. “The Lord Ordinary, after reading the representation, will either refuse the desire thereof, or ordain the same to be answered by the other party; either of which shall keep the matter open until a new interlocutor is pronounced.”∥ [Failing both, it may thence be inferred, the cause would be at an end. A catastrophe of this sort, does it ever happen? If seldom, the unfrequency of it is a proof of the constancy of his lordship’s vigilance. How should there be any failure of that virtue? The cause gone, with it go the representations and the fees.]

5. “Every new interlocutor creates a fresh delay, as it is competent to the party who thinks himself injured to offer a new representation, within ten days [a fortnight] of the last interlocutor; and there being no limitation as to the number of representations, the occasions of delay are infinite, when parties are litigious.”§

There being no limitation to the number of representations, there is no limitation to the number of 3s. fees: and there being no limitation to the number of his lordship’s fees, there is no limitation to the extent of his lordship’s patience. Where is the virtue that may not be taught by money? By money, English judges are taught mendacity: by money, Scotch judges are taught patience.

6. “If the Lord Ordinary, after repeated representations, shall continue to adhere to his former interlocutor, the party who complains must either acquiesce, or apply to the Lords in the Inner-house by petition.”

This in 1768. One and thirty years after, let us observe how the matter stood in 1799.¶

7. “It is to be regretted,” says Mr. Lawrie, “that there is no general rule of court, limiting representations in point of number; as a party who conceives himself hurt by the Ordinary’s judgment, frequently brings an intolerable load of expense on his opponent, and trouble on all concerned.” The party? Is he the author of the mischief? What is the judge about all this while?

8. “Sometimes,” says he again, “in order to accelerate the final decision, and save trouble and expense to the parties, the Lord Ordinary declares in his interlocutor [inexorable justice!] that he will receive no more representations; in which case, if the party be dissatisfied with the judgment, he ought to apply for redress to the inner-house. In practice, however, such declaration is too often disregarded [amiable weakness!], more representations being given in, notwithstanding the prohibition, by which means the salutary ends which the judge has in view are often entirely disappointed.” Thus it is, that, under the fee-gathering system, the virtue of judges is continually set at nought by the wickedness of suitors.

Observe, that, to prevent the mischief altogether, all that his lordship has to do is to abstain from violating his own solemn engagements; that to this purpose no positive act whatever is necessary; for that, if his perfidy slumbers but for a moment, the cause with its fees is at an end. All that he has to do is, to abstain from travelling any further in that track of corruption, into which perhaps in no other country, certainly not in England, has any judge the effrontery so much as to make a footstep.

Of the statement thus given by the institutionalist, one is at a loss to know what to think. Is it serious? Is it irony? Is he a party to the hypocrisy, or a dupe to it?

The fee which is treble to that by which the probity of English Masters in Chancery has been so long subdued, is far (I have already observed) from being the whole of the force by which that of the Scotch judges has been kept in the state we see. As to making out a complete account of it, I have already acknowledged the impracticability of it. The greater the number of shillings, the more irresistible the temptation, the better the excuse: let us pick up a few more.

9. “If the representation be ordered to be answered at the bar, it is the business of the other party to enrol the cause in the Ordinary’s first hand-roll* . . . . To his lordship’s clerk, for every enrolment in the hand-roll, fee 3s.†

10. “But, if the order be simply to answer the representation, which is the most usual deliverance, the other party must give in a written answer, within the time limited by the interlocutor, if any time be specified.”‡ At giving in this “answer,” or “any other paper in a cause, appointed by the Lord Ordinary,” fee to his lordship’s clerk, 3s.”∥

Let us now hear Mr Bell, official lecturer on conveyancing, in his System of Deeds, vol. vi., exhibiting instruments of procedure:—

“When a judgment is pronounced by the Lord Ordinary, the cause must then proceed as before, by representation and petition; but where memorials or informations are appointed to be given in, it will most probably happen, that the one party is more anxious than the other to bring the cause to a conclusion:” (i. e. the plaintiff to receive his money, than the defendant to part with it) “and of course to force in the memorial, or information. This is to be done only by preparing the memorial, on the part of the client, and by enrolling the cause, and praying the Lord Ordinary to appoint the opposite party to lodge their memorial. The Lord Ordinary will, of course, renew the order against next calling; but in all probability, several such enrolments [value of each, 3s.] will take place before the order be made peremptory, or under a fine. In short, this is a situation in which it is almost impossible to force forward the cause: the only remedy you have, is by constant enrolment [application of 3s. fees in that shape], and by strong representations [application of similar fees in that other shape] to the Lord Ordinary, of the necessity of dispatch, to obtain an order that will force in the paper called for” (and with it a last 3s. fee.)

The judge takes payment for making delay: and the more delay he makes, the oftener he is paid: and to this traffic there are no limits. Is it to be wondered at that Scotch suits are longer still than English ones?

Compare this case with the preceding one: between them the partnership have a dilemma, and such a one, that on one or other horn they are sure to catch you. Is it delay you want to buy? There it is for you and welcome, at a fixed price: is it dispatch you want? There is delay for you instead of it. The higher you pay for your dispatch, the more delay you have for your money: and so it goes on, till shame or fear cries out to them. The measure is full: it is time to be in earnest.

A pretty task is that allotted to the suitor! to ply the judge with fees till his lordship is tired of receiving them!

Two courts, through which almost every cause (at least every cause worth retaining) is doomed to travel: one in which his single lordship would not get on if he could; the other in which their whole lordships could not get on if they would.

It is not enough for them to be themselves delayers: they must moreover be the cause of delay in other men.

Scotland is fortunate enough to be provided with a system of local courts, competent to the task of rendering prompt and unexpensive justice to every man at his own home; unfortunate enough to see, in the two so closely intertwined branches of this supreme court, the power and the will to nip in the bud that incipient advantage. Of their joint activity, no inconsiderable portion is employed in paralyzing the salutary action of the interior courts.*

One merit which, in comparison with English, is peculiar to Scotch lawyers,—they do not plaster over the foulness of their system with enlogistic daubings. They acknowledge—at least there are some among them that acknowledge their need of amendment. Such is their humility, they are willing to draw it from the fountain that flows on the other side of the Tweed: and their southern brethern, such is their liberality, are ready with their ink to blanch the northern ebony.

When abuse is the plant, the pruning-knife, not the pick-axe, is the instrument employed by jurisprudential husbandry.

When you see the lawyer bustling, and a twig or two cut off, be sure that the patience of the non-lawyer is exhausted, or threatens soon to be.

Once in half a century or so, the legislator awakes from his trance, and then something is to be done. At other times, his dealing with the man of law is that of the young spendthrift heir with his steward or his wine-merchant. “The fellow is a rogue and cheats me, but rather than be at the pains of overhauling his account, I’ll e’en set my name to it as usual, and there is an end of it.”

The real nature of the representation trade, was it a secret to the traders? Without staying for the answer of common sense, let us look to history. In a particular case specified, so long ago as in 1756, representations were forbidden.† In this case, they were taken away altogether. In other cases, Mr. Russell, who ever and anon is a reformer, suggested that the number of them be limited. Limit the number of representations. When you have done that, reduce the number of masters’ warrants from three to two: or the number of common bail or of pledges of prosecution from two to one.‡ Discard poor Mr. Doe, and leave his friend Mr. Roe to pine in solitude. Such are the reforms of lawyers!

Ask an English judge how many representations he thinks ought to be allowed? or (what to him is the same question) how many his law allows? He will answer you, when a Scotch judge has informed you, how many common bail, or how many pledges of prosecution, he looks upon as necessary.

What is above is but a sample. Let it not be imagined that the above manifestations of the influence of the principle of corruption are all that could be found; let it not be imagined that they are the hundredth part; let it not be imagined that they are even the grossest manifestations. Why then employed to the exclusion of others? Partly by accident; for the labour of a complete survey would have been too great: partly as being more intelligible.

Ransack the whole system of procedure—travel through it from beginning to end,—you will find it throughout of the same complexion, owing its birth to the same causes.

Maximum of profit to the partnership, the main and constant end: maximum of ease, the collateral end. Minimum of expense, delay, and vexation to the suitor, the pretended—maximum the real—object, pursued in the character of an intermediate object, conducive to the main end. Misdecision and failure of justice knowingly produced, not for their own sake, nor therefore constantly, but whenever they presented themselves as conducive to the above intermediate end, and thence onwards to the ultimate. The ends of justice, the true and legitimate ends of judicature, pursued so far, and so far only, as seems necessary to keep the people, in the character of suitors, in a state of patience, and keep the talons of depredation covered by the cloak of justice.

Such being the interest—such the wishes and endeavours generated by these interests,—what were the means employed by them? It remains that an answer be given to that question, by a brief indication of the principal devices employed by the fee-gathering system, for the attainment of these ends.

[* ]The reader will remember that this was written previously to Mr. Peel’s recent law reforms. By one of these [6 Geo. IV. c. 96,] a partial, and but a partial, remedy, was applied to the abuse here in question; which, however, will equally serve the purpose of history, and of illustration.—Editor.

[* ](Written in 1806.)

[† ]Vide infrà, Chap. XXVIII.

[‡ ]Vide supra, Vol. V. p. 349.

[* ]Accident once led me to an examination, said to be taken by an alderman of our great metropolis: the clerk found thought and words, the alderman yielded auspices. Yet the alderman had been a lawyer in his day, and this was in a large and crowded place. What had it been in a closet?

[† ]So long ago as in 1734 (18th March,) there was an assembly of chancery officers sitting, under the appellation of a jury, to inquire into the reasonableness of their own fees.a On this subject, one of the findings of this jury was, that, though the recompense received by the masters was not, on the whole, an adequate one, yet, adequate compensation being made, those “fees on warrants should be taken away:” and that, this done, “rules should be laid down for preventing the like consequential expenses being continued on the suitors, after such new regulation.”

In the year 1740, there existed a set of commissioners, appointed “for taking a survey of the offices of the courts of justice, throughout England and Wales, and inquiring into the fees.”b In the report made by these commissioners, dated 8th November 1740, the passage containing the opinion of the jury, as above, is transcribed.

Several times, at the instance of the official lawyers, have augmentations been made to the salary of these subordinate judges. At no time has the mouth of any lawyer been opened, to stop these judges from the receipt of fees on false pretences.

[* ]Supposing this report and another to be correct, two things are certain relatively to a conscience which may be taken for a sample of other consciences.

One is, that, in the perpetual prohibition thus put upon justice, saving bought exceptions, there is nothing by which the sensibility of that delicate organ is affected by any such sensation as that of pain.

Another is, that either the practice of the sham warrants (a practice so well known to every other learned person who knows anything about the court and its practice) had been fortunate enough to escape his lordship’s notice; or that, in the practice of making delay on false pretences for the sake of fees, there is nothing capable of affording any such unpleasant sensation to the same learned conscience.

Whence does this appear? From an authority no less exalted and irresistible than his lordship’s own certificate. “I quit the office I hold,” says his lordship’s speech in so many words,a “I quit the office I hold, without one painful reflection: and I enjoy the grateful feeling, that there is no suitor who can say I have not executed it conscientiously.” Most assuredly no suitor, who has read the trial of Mr. Justice Johnson for words said of the noble and learned lord’s noble and learned friend and colleague, will say so if he is wise.

There are four modes of defending innocence, when attacked by the press. One is by silence; another by answer; a third by prosecution admitting proof of delinquency; a fourth by a mode of prosecution that shall preclude it. The last is the mode chosen by English judges: and then they grow bold and say—“Accuse me if you dare.”

[† ]Description of the mode of proceedings before a Master in Chancery; from the “Apology for the Conduct ofMrs. Teresa Constantia Phillips,” anno 1761, vol. iii. p. 173-178.

“By means of these subterfuges and evasions, she was above two years before she was able to get a report; for when a warrant was taken out, and the parties were to attend at five, nobody appeared till after six, and then it was either a message from the counsel or the solicitor, to beg the Master would be so good as to excuse the counsel, who had a cause in Chancery, or some other no-business that day, and could not possibly attend.

“If the counsel was ready, the solicitor was ill, or had a cause elsewhere.

“At other times, Mr. W. would promise to take a warrant out for the next attendance, as it came in his turn; and, if he kept his word (which seldom happened, for he generally chose to forget it.) he would take it out three or four days later than he agreed to do.” [A warrant—Here was every exertion made that could be made, to make delay: if, at this time, the practice of taking out three warrants constantly for three different days to procure one attendance had been established, would not some notice have been taken of it?] “In fine, thus was she played off and amused by these gentlemen: it was looked upon as a great point gained if one warrant in six was spoken to; and then it was only to go the same matter over and over again, with all the sophistry their imaginations could furnish.

“Very frequently the modification of a word has been the business of a whole attendance; for the counsel’s watch was laid upon the table by him, and he took great care never to exceed a second beyond the hour.

“Though this is a most terrible grievance to a suitor, can it be imagined a master will be so infatuated as to discountenance a practice whereon the chief profits of his place depend? No, surely.

“Then what remedy is there left for the party distressed by these iniquitous delays? Why,they must move the court by their counsel, that the master may expedite his report, and the parties attend de die in diem: and a motion of this kind is seldom or ever made but you run the risk of gaining the master’s displeasure before whom your question stands; and no doubt that would be looked upon as a dangerous proceeding; therefore, this is an evil without remedy.

“But at last, in 1744, she obtained a report in her favour, after being obliged to put in six or seven different answers; for, if by any chance there was the word then instead of than, they blotted it out to oblige her to put in another, and then another, till, finding no possibility of cavil, even at a word, they were obliged to give it up, after two years and some months close attendance, and that monstrous expense.

“However, that this summary way of proceeding may not give our readers too high an opinion of the law, they will be pleased to observe, before she went to Jamaica, this had been above two years referred to the master: therefore, from first to last, exclusive of the time she was abroad, this answer was five years attending;—not that she lays the blame upon the master to whom it was referred, for when they at any time attended, and he, good old gentleman, could keep himself awake, he endeavoured all in his power to understand them.

“The master, she believes, was an honest man; but not one of those judges who, ‘if he could see light through a hedge which he was not able to pass, would jump over it.’ [An expression of Lord Chancellor Talbot’s in this cause.]

“Mr. M—n’s counsel and solicitor in this case were his neighbours; and, before any warrant was to be attended, they generally smoked a pipe together, and the stories they told him were so very different from what she used to tell him before their faces the next day, it perplexed the good old gentleman to such a degree, that he used to fall asleep for relief; and when he awaked, made an excuse for what he called shutting his eyes to save them; and Mr. O—(who continued all the time he was reposing still talking,) would say—‘Well, master, I believe you will be of opinion that this line we have been arguing, viz. “And this deponent at that time lodged at the house of Captain Burton, &c.” should stand thus:—“And this deponent on or about that time was a lodger at the house of one Captain Burton,” &c.’

“Pray, reader, observe how material was this exception.

“ ‘I say, master, I believe you will be of opinion, this ought to be altered, and more explained, and therefore is insufficient; but, as it is six o’clock, we must defer our other objections till the next warrant.’

“The poor old gentleman generally consented; for it is not to be imagined an apothecary would be against a repetitum.”

Lawyer—Memoirs of a courtezan?—a pretty source to draw from!

Give me a better, and I draw from it. Is it my fault, that the transactions of a cell, where a great part of the property of the kingdom is perpetually telling over a girdiron, should be as perpetually involved in darkness? In such a state of things, have not the faintest lights their value? Of the matters of fact there stated as true, must not some the most material have been in their own nature matters of notoriety? With her adversary she was at bitter enmity: but, as to the state of the law, and the conduct of those by whom it was administered, she had no motive for representing it as being any otherwise than she found it.

[* ]Jurisd, &c. of Great Sessions, p. 124. Anno 1795.

[† ]Preface to the same work, p. xxviii.

[* ]I. 198.

[† ]Sellon’s Crompton, I. 217; II. 76, 77.

[‡ ]At the time when this appears to have been written (1806,) the fifteen judges of the Court of Session were in the practice of sitting as a sort of deliberative assembly, and, like a legislative body, they are known to have been divided into parties on important legal points, the debates being often conducted with great acrimony. In 1808 (48 G. III. c. 151) the court was separated into two divisions. In 1825 (6 G. IV. c. 120) seven of the judges were appointed to sit, under the title of Lords Ordinary, as single judges, deciding cases in the primary instance. In 1830 (11 G. IV. & 1 W. IV. c. 69) the number of judges was reduced to thirteen, and there are now (1839) five judges who individually decide cases in the first instance, and two courts of further recourse, each consisting of four judges. In cases of difficulty, it is still, however, the practice to take the opinions of all the thirteen judges.—Ed.

[* ]Bell’s System of Deeds, VI. 75.

[* ]Russell [viz. “The Form of Process in the Court of Session and Court of Teinds, to which is prefixed a General Account of the College of Justice. By John Russell, Clerk to the Signet.” Edin. 1768.] p. 51.

[† ]Bell, VI. 75.

[‡ ]Russell, p. 64.

[∥ ]Russell, p. 65.

[§ ]Ib. p. 66.

[¶ ]Lawrie [viz. “New Form of Process before the Court of Session and the Commission of Teinds, with a General Account of the College of Justice, and a Table of the Fees payable to the Clerks and Officers of the Court. By a Member of the College of Justice,”] p. 91.

[* ]Lawrie, p. 90.

[† ]Ib. p. 383.

[‡ ]Lawrie, p. 91.

[∥ ]Ib. p. 383.

[* ]The forms of procedure, against which the above remarks are levelled, have been altered to so great an extent, that the technical phraseology made use of, has in a great measure ceased to be applicable to the practice of the Court of Session:—for instance, the document termed a Representation, is now unknown. Without descending into the minutiæ of these alterations, it may simply be observed, that the tendency of modern legislation has been to increase the powers and duties of the Lords Ordinary, and to render procedure before them more brief and effectual. When the works quoted in the text were written, there was but one Lord Ordinary: there are now five (vide supra, p. 221, N.‡ .) When a Lord Ordinary has given his decision, there is no means of again opening up the case in the manner alluded to: there is still, however, recourse to the Inner-house, and thence appeal to the House of Lords. The judges have no interest in any fees collected. Many of the minor officials of the court depended long on this source of income; but in 1838, an act was passed (1 & 2 Vict. c. 118,) appointing them to be paid by salary; all fees (except mere remuneration for copying documents) being collected into a general fund to assist in the exepnses of the establishment. See farther on this subject, the Letters on Scotch Reform, in Vol. V.—Ed.

[† ]Russell, 66. 17th Jan. 1756.

[‡ ]Common bail, or sham bail—fictitious persons, whom an English judge, on receiving a fee, gives to a creditor for his security.

[† ]So long ago as in 1734 (18th March,) there was an assembly of chancery officers sitting, under the appellation of a jury, to inquire into the reasonableness of their own fees.a On this subject, one of the findings of this jury was, that, though the recompense received by the masters was not, on the whole, an adequate one, yet, adequate compensation being made, those “fees on warrants should be taken away:” and that, this done, “rules should be laid down for preventing the like consequential expenses being continued on the suitors, after such new regulation.”

In the year 1740, there existed a set of commissioners, appointed “for taking a survey of the offices of the courts of justice, throughout England and Wales, and inquiring into the fees.”b In the report made by these commissioners, dated 8th November 1740, the passage containing the opinion of the jury, as above, is transcribed.

Several times, at the instance of the official lawyers, have augmentations been made to the salary of these subordinate judges. At no time has the mouth of any lawyer been opened, to stop these judges from the receipt of fees on false pretences.

[* ]Supposing this report and another to be correct, two things are certain relatively to a conscience which may be taken for a sample of other consciences.

One is, that, in the perpetual prohibition thus put upon justice, saving bought exceptions, there is nothing by which the sensibility of that delicate organ is affected by any such sensation as that of pain.

Another is, that either the practice of the sham warrants (a practice so well known to every other learned person who knows anything about the court and its practice) had been fortunate enough to escape his lordship’s notice; or that, in the practice of making delay on false pretences for the sake of fees, there is nothing capable of affording any such unpleasant sensation to the same learned conscience.

Whence does this appear? From an authority no less exalted and irresistible than his lordship’s own certificate. “I quit the office I hold,” says his lordship’s speech in so many words,a “I quit the office I hold, without one painful reflection: and I enjoy the grateful feeling, that there is no suitor who can say I have not executed it conscientiously.” Most assuredly no suitor, who has read the trial of Mr. Justice Johnson for words said of the noble and learned lord’s noble and learned friend and colleague, will say so if he is wise.

There are four modes of defending innocence, when attacked by the press. One is by silence; another by answer; a third by prosecution admitting proof of delinquency; a fourth by a mode of prosecution that shall preclude it. The last is the mode chosen by English judges: and then they grow bold and say—“Accuse me if you dare.”

[a ]27th Fin. Rep. p. 20.

[b ]Ib. p. 58.

[a ]Morning Chronicle, Feb. 5, 1806.