The Online Library of Liberty

A project of Liberty Fund, Inc.

• 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 VII.

SECOND DEVICE—TRIBUNALS OUT OF REACH: OR, SWALLOWING UP THE INFERIOR COURTS.

If justice he necessary in one place, it is little less so in any other: if justice be necessary to one set of men, it is little less so to another.

So obvious is this truth, that, upon the first settlement of every country, judges, with competent authority, distributed all over the country in courts under some denomination or other, as little distant from each other, and thence as numerous, as the state of the country in respect of wealth and population will admit, are, under the natural system, an obvious and general arrangement. To disturb it, requires, as under the fee-gathering system, power, perverted by the impulse of sinister interest to private purposes.

In every country in which the technical system has established itself—in every country, to an extent commensurate with the power possessed under that system by the superior courts, established (as they naturally would be) at the fountain-head of power, as close as possible to the ear of the sovereign,—to strip the local, distant, and consequently inferior and weaker courts, of as much of their jurisdiction as was possible, has of course been the constant aim of the superior, the metropolitan, courts.*

But in no country have the enterprises of this most cruel species of robbery been so successful as in England.

Not to speak of bye-courts established for particular purposes,—not only before, but for ages after, the Norman conquest, every county, every hundred, had its court, sitting for general purposes.

If in any place justice be necessary in respect of any one sort of cause, in that same place justice cannot be much otherwise than necessary in respect of every other sort of cause. If, then, of a court sitting in any district (a hundred for example,) the whole time be not taken up by causes of a particular description, nature and utility combine in giving to (or rather in not taking from) that same court, the power of administering justice in causes of every other description. To so simple an arrangement, limitations may be made by power, actuated by sinister interest or caprice, but cannot, unless for some very cogent and not at all obvious reason, be warranted by utility and justice. Between jurisdiction and jurisdiction, geographical lines of demarcation are prescribed by utility, rising to the degree of necessity. Metaphysical lines of demarcation (except in here and there a particular case, indicated by special circumstances) are the result of a compromise between rapacity and rapacity, fighting in the dark.

Under the natural system of zoological economy, spider devours spider, for want of flies. Under the technical system of procedure, judge, give him time and power, swallows up judge. If the hundred court—if even the county court, once so efficient and so exalted in power and dignity, with its carl and its bishop, its temporal judge and its spiritual judge, can still be said to have existence, it is scarce otherwise than in name: it is as the shell of the fly, which, after having been sucked by the spider, is sometimes seen flittering in the web.

In a general point of view, the cause of this voracity is as obvious as the fact is notorious. As to the details of the operation, and how it happened that the success of the enterprise was so much more complete in England than anywhere else,—the investigation would be curious, but here there is not sufficient space for it: and if not history (for history requires honesty,) materials at least for history are not wanting in the books.

Of the mischiefs resulting from this distinction, little need be said.

On the one hand, anarchy, failure of justice, the equivalent of constant misdecision to the prejudice of the plaintiff’s side:—on the other hand, factitious delay, expense, and vexation, and in general with an increased chance of misdecision to the prejudice of either side.

From extinction of local courts, comes enlargement of the geographical field of jurisdiction of their devourers, the metropolitan courts. Thence increased length of journeys and of demurrage—obvious and irremediable causes of increased delay, vexation and expense.

In each several instance, the burthen sustained, is it sustained by both parties?—then comes the collateral inconvenience. Does the plaintiff (that is, the injured individual who but for the abuse would have been plaintiff) sink under it?—then comes the failure of justice. Is if the defendant who sinks under the burthen?—then comes misdecision to the prejudice of the defendant’s side: a mischief on that side, correspondent, and not inferior to, the mischief of failure of justice on the plaintiff’s side.

If the mischiefs of this devastation are obvious and incontestable, the advantages aimed at and reaped by the authors are no less so.

1. Making increase of business. Of the whole number of causes that would have gone to the local and little district courts, it was but a part indeed, and that a small part, that could find its way to their metropolitan devourers; the remainder would evaporate in the shape of failure of justice. But no grain of profit was too minute to be stooped for; nor any mischief too great a price to be paid for that minimum of profit. Witness the shillings, the splendid shillings, the price of delay under English equity;* witness other delays without number, with their respective purchase-moneys.

2. Making pretences and means for the exclusion gradually put upon the parties in all cases.

The more remote the province, the more intolerable the vexation of journeys and demurrage to and from the head seat of judicature: especially in a state of society which afforded neither roads, nor carriages, nor inns, nor lodging-houses, nor security against robbers. But, the more intolerable the burthen of attendance, the more anxious the solicitude to obtain permission for the employing of professional substitutes: who, when once admitted for the relief of distant suitors, soon found means to render it as impracticable to suitors to do their business in Westminister Hall without the help of lawyers, as it is to stockholders to make transfers at the Bank without the help of brokers.

Besides; it would be a hardship to send to a man at the Land’s End to come and be heard at Wesminister; therefore, so it would to send to a man in Palace-yard, or to put a question to him in court, if he is there already. This logic impresses conviction on learned minds. To come and he heard is the greatest of all hardships to a man: understand, if it is about business of his own; for if it is a business in which he has no interest, he being but a witness, there is no hardship, or at least none worth thinking about.

Without this advantage, the other would in comparison have been little worth: the system of procedure pursued would have been the natural system: and, under that system, business is scarce worth having.

3. Saving technical judicature from the odium of comparison, by the extinction of natural judicature.

This advantage came in gradually, as the technical system, with its ever-increasing mass of delay, vexation, and expense, took place of the natural, in the superior courts. In the local courts, the mode of procedure would of course continue, if not purely natural, at any rate, in comparison, undilatory, unvexatious, unexpensive.†

The motives being so strong, and power being adequate, means could not be deficient: the mode was the only object that presented itself to reflection or choice. In the choice there was no difficulty. Make the recourse of the suitor (that is, of the plaintiff) to the local courts, vain and useless, productive of nothing but vexation and expense,—he will either sink under the injury, without seeking for justice anywhere, or he will seek for it in the great courts. Removal, in all its shapes, proffered itself, and was accepted, for this disastrous service.

Make the burthen of attendance in the great courts intolerable, the suitors on both sides will fly for relief into the arms of their natural enemies, the professional members of the law-partnership, raised up, to bring in custom, by the head and most active partner, the judge.

John Poor and Thomas Rich live both in Cornwall. Rich is able to bear the charge of journey and demurrage to London; Poor not. From the Cornish courts, a defendant has the power of removing the cause to the London courts. What chance has Poor for justice against Rich? None whatever. Rich removes the cause from London, and Poor gets his labour for his pains.

In this way, nineteen injuries, perhaps, out of twenty, are shut out from remedy. Who cares? Judge and Co. get their profit out of the twentieth.

The indigent of all classes are thus reduced to a sort of slavery under the opulent: nineteen persons put out of the protection of the law, that two may be squeezed by and for the benefit of the lawyers.

Removal is either absolute, or not without leave: leave, viz. of the court ad quam, the court into which the removal is proposed to be made.

Obligation of applying for leave, is in appearance a security against oppression—in reality an aggravation of it; a cause tried, to know whether another cause should be commenced; the yoke doubled on pretence of lightening it.

Under the fee-gathering system, sham securities* of this sort are as easy to find, as it is difficult to find real ones. The prime security is the appearance of the parties at the outset coram judice: and, to bereave the suitor of that security, nothing that power and industry could do has been left unemployed.

In general, and after allowance made for a few narrow exceptions,† there can be no sufficient reason for taking any sort of cause out of the jurisdiction of the local court, in any other way than by appeal.

If there were any such reason, what should it be? Value of the matter in dispute too great to be entrusted to such inferior, and comparatively untrustworthy, hands? But the remedy, and the sufficient remedy, lies in appeal, not in refusal of cognizance. When the party, who knows the circumstances of the cause, and against whom the decision is, sees no reason to be dissatisfied with it,—is it for the legislator, or the superior judge, who knows nothing about the individual cause,—is it for these strangers, to be dissatisfied with it?

From whence is it concluded that the judge is unfit to be trusted with a sum above the mark—he whose fitness for judging of all sums up to the mark is assumed?

By delay (it is true) injustice equal to any producible by misdecision—equal, and even superior (since, to the mischief of antecedent delay, vexation, and expense, may come to be superadded the mischief of ultimate misdecision,)—injustice, especially to the prejudice of the plaintiff’s side, may come to be produced; and, to this mischief, an appeal, which supposes decision, applies no remedy. But, though it lies not within the reach of that same remedy, neither is injustice by delay, any more than injustice by decision, without its remedies; nor are those remedies less efficient in this than in that other case.

[* ]In Scotland, the course of modern legislation has tended to devolve on the local courts of the Sheriffs, several very important branches of jurisdiction, formerly peculiar to the Court of Session. See especially 1 & 2 Vict. c. 119, and 2 & 3 Vict. c. 41.—Ed.

[* ]See Chap. IV. of this Book (supra, p. 217.)

[† ]Meantime, however, the exigencies of society had given birth to new courts, in the practice of which the natural mode of proceeding was revived; in particular, the courts filled by Justices of the Peace, acting out of general sessions at their own houses. Courts pursuing the ends of justice, presented an odious and formidable object of comparison and standard of reference to courts pursuing the ends of judicature. The precedent was alarming: they could not be too anxiously kept under, and discountenanced.

[* ]In the case of an offence prosecutable by information,—motion for leave to file an information; motion for a mandamus; motion for a prohibition; motion, in some cases, for a certiorari (a writ to remove a cause from an inferior to the superior court,) though in others, perhaps in most, the removal by certiorari, is ad libitum. No new trial without motion: though in many cases it might be grantable to great advantage by the judge, viz. immediately on hearing the verdict, and without farther argument.

[† ]Example of exceptions proposable, with their grounds and reasons:—

1. Supposed unfitness of the ordinary judge: as in some ecclesiastical causes.

2. Residence of parties and witnesses naturally confined to a few particular districts, as in some maritime causes.

3. Extraordinary judge extraordinarily well qualified by appropriate skill and experience, and the causes, in respect of their value, such as may in general bear the extra expense, &c. of the journeys and demurrage resulting from the exclusion put upon the greater part of the local courts. Examples: 1. The exclusive jurisdiction of the Admiralty courts; 2. and of the courts having the cognizance of the validity of wills: defensible upon that, if upon any, ground.