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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 XIII.

EIGHTH DEVICE—CHICANERIES ABOUT NOTICE.

Whensoever, for the purposes of justice, an obligation to any effect is imposed upon a man, knowledge of the existence of such obligation is necessary to the fulfilment of it; or at any rate to the affording the requisite security for its being fulfilled. What in some cases may happen, is, that, without knowledge of the obligation, a man may be led by other causes to do that which it is the object of the obligation to engage him to do: but, in so far as the obligation is either necessary or conducive to his performing that act which, being performed, is the fulfilment of it,—so far the knowledge of the existence of the obligation is necessary to the fulfilment of it.

On the part of the individual, fraud and injustice operating on the subject of notice, must assume one or other of two forms:

One consists in wilful omission to give notice, viz. in the not furnishing the person by whom the performance (or the opportunity of performance) of the act in question is necessary to justice, with information of the existence of the fact, the contemplation of which is to present to him the motive for such performance.

The other consists in the not acknowledging the receipt of notice: to wit, by him by whom it has actually been received.

Under the fee-gathering system, fraud in these shapes, as in all other shapes, being in some way or other beneficial to the partnership,—among the objects of that system has accordingly been that of giving encouragement to fraud in both these shapes.

One device has consisted in the enabling a fraudulent party (for the joint benefit of himself and the partnership) to impose upon his adversary, without effective notice given, this or that burthensome obligation: the imposition of which, on the supposition of the receipt of effective notice, may be just or not just, but, at any rate, on the supposition of the non-receipt of such notice, is not just.

The opposite device has consisted in the enabling the fraudulent party, by whom effective notice has been received, to escape from this or that burthensome obligation, the imposition of which is necessary to the giving effect to the correspondent right on the part of his adversary: to escape, viz. on the supposition that the effective notice so received had failed of being received: failed, viz. either because it never had been received at all, or because it had not been received at such time, and in such manner, as to enable it to answer the purpose for which it ought to have been given.

On these two devices taken together has been engrafted a third, consisting in the needless diversification of the modes and forms of notice: the written instruments required to be employed, and the steps or operations required to be performed, in relation to such instruments.

This diversification has had two main sources:—1. The diversity of courts—the fertile source of confusion and injustice on so many other grounds besides this; 2. The diversity of occasions on which the demand for notice may have been presented by incidents arising in the same court: viz. whether in causes of the same sort, or in causes of different sorts carried on in the same court.

The demand for the notice is produced by the obligation grafted on it—by the obligation, to the justice of which the existence of such receipt is a necessary condition. This obligation will in every case be bottomed upon two inseparably connected grounds:—1. The existence of the law, or rule of law, by which the quality of giving birth to the obligation in question has been conferred on a fact or facts of the description in question; 2. The existence of such fact or facts.

As to the law,—as on this occasion, so in all others,—to prevent it from having been present to the minds of those who are subjected to its operation, on the supposition of its having been, on the occasion in question, present to their minds, is among the fundamental policies and constant endeavours of the fee-gathering or technical system, in every part of its course.

The keeping of the requisite facts also out of the reach of the minds of those who are to be thus operated upon, is a more special and diversified application of the same industrious policy. Examples will meet us as we advance.

After what has been said, or even without anything of what has been said, two propositions, it is supposed, may pass without any dispute:—1. That, whenever appropriate notice is necessary to justice, it ought to be effectively given; 2. That, whenever it has been effectively given, and thence effectively received, it ought to be deemed and taken to have been received; i. e. that ought to be done, the doing of which, in the case in question, is, upon the supposition of such actual receipt of notice, conformable to justice.

Hence,—to any one whose desire it really were that in all cases, as far as possible, justice should be done,—a main question would naturally at the outset present itself: What in general is the most effective, and upon the whole the most eligible, mode for the conveyance of effective notice?

In the endeavour to find an answer to this question, the first observation that presents itself is, that to this purpose not merely the efficiency of the notice ought to be attended to, but likewise the other consideration so inseparably connected with many questions relative to the subject of procedure,—the consideration of the circumstances of delay, vexation, and expense. Thence comes the question in its amended state: What is the most eligible mode to be taken for conveying effective notice, regard being had to the collateral considerations of delay, vexation, and expense?

To find an answer to this question, the first object to be looked to is the occasion: understanding, in this instance, the occasion as constituted by the stage of the suit: by the stage in which it is proposed that the notice in question, be it what it may, shall be given and received.

The person by whom it is proposed that the notice be received, will, in each case, he either willing, or not willing, to receive it.

In so far as he is willing—the proposed giver of the notice being also by the supposition willing to give it—there can exist no difficulty. In the ordinary and amicable intercourse of life, those who wish to hold intercourse with one another, and are at the same time free to do so, never experience any other difficulty than those which are opposed by the circumstances of time and place.

Unfortunately, as between parties litigant, the case in general is unhappily the reverse: by whatever motive one party is prompted to give the notice, by some correspondent motive the other party is prompted to avoid, if possible, the receiving it: or rather, the being deemed to have received it. If the notice has been received, such and such proceedings, tending to impose a burthen in some shape upon such receiver, are lawful, and productive of such their intended effect; if not, not: but his endeavour is of course to avoid being subjected to that burthen: therefore his wish and endeavour is, that,—whether the notice was or was not received by him,—the supposition entertained, or at least acted upon, by the judge, may be in the negative.

Under the natural system of procedure, in so far as it governs, whether in the private circle of a family, or in a public sphere—in so far as this primitive mode has been preserved or restored by law—the most eligible course is not only to the last degree obvious, but (in so far as legal powers have happened to extend) is exemplified in every day’s practice; though, as to the execution of what is determined to be endeavoured at, difficulties will of course be apt to present themselves, and in as great abundance and force as one of the parties can contrive to give to them; yet, as to the determining of what shall be endeavoured at, difficulty has scarcely any place.

Where, for this or for any other purpose, two parties are really and mutually wishing to hold intercourse with each other,—they embrace of course the most effective, and (regard being had to delay, vexation, and expense) the most convenient, modes, which the state of society in the place and at the times in question happens to afford: special messengers on foot, special messengers on horseback, letter-post, mail coaches, telegraphs, and so forth.

The problem and the difficulty, the only difficulty, is, how to render that party willing who of himself is not so; or, where that is impracticable, to supply the place of willingness on his part by other means. Under the natural system, the solution of this problem will depend upon the stage of the cause.

When the judge is honest, and not ashamed or afraid to face the parties, the business of notice is attended with little difficulty.

At the outset of the cause (suppose) a meeting is produced; after this, all difficulty is at an end. A mode of intercourse is settled for each, and by mutual consent. Declare (says the judge) on pain of losing your cause, at what place delivered, and how directed, it may be taken for granted that a letter has reached your hands. So delivered and directed, by accident should it happen to any letters to have miscarried, the inconvenience, whatever it be, shall ultimately rest, no part upon your adversary, the whole of it upon you. This arrangement lasts so long as the cause lasts; the cause lasts, as to this purpose, till to this purpose I have declared it to be at an end.

As to the mode of procuring the initial meeting, in general a simple summons will suffice. But if there be any apprehension of latitancy, and that apprehension declared upon oath (or what is equivalent,) and registered, so as to render the plaintiff responsible in case of vexation, the security afforded by personal arrestation need not be grudged. In this or any other shape, the danger of wilful and needless vexation cannot be great, where the author, in case of its being deemed so, is sure to smart for it.

Arrest, when it is (what it ought to be, and might so easily be) neither more nor less than a visit to the judge, is at the worst but a forced visit. Every forced visit is unpleasant; but by what human means shall a man be exempted from the occasional vexation of making and receiving unpleasant visits?

Arrest, as under technical procedure it is, and, so long as that system of abominations remains unextirpated, will be, is indeed a most barbarous oppression, a most enormous grievance. The visit is not to the judge, but to a jail; that, in that seat of misery, indigence may be stript of its last rag, out of the sight, and for the benefit of the judge,* his protegés, and under-partners.

A third person—a person who is not a party—a person whose presence, although he be not a party, may, in the character of witness, or any other, be necessary to justice,—is in this respect in the situation which the defendant is in, antecedently to the first judicial meeting so often spoken of.

In case of necessity, not on parties only, but on third persons, from whom information, or any other service, is necessary to justice, might this mode of enforcing it be practised without reserve; always understood, that in case of purposed vexation, the author is at the same time himself standing in the presence of the judge, ready by his immediate appointment to pay for the injury by due satisfaction or condign punishment.

By the laws of the Twelve Tables, any man might lead or drag into the presence of the judge any other, obtorto collo, giving his neck a twist at the same time. The twist in the neck might have been spared: that omitted, and responsibility for vexation added, the provision would not be less conducive to justice now than then, in London than in Rome.

Lawyer.—And would you have the whole time of a leading member of parliament, of a first minister, liable to be thus consumed by a conspiracy of blackguards, or, on condition of perseverance, by a single blackguard?

Non-Lawyer.—No, certainly: but your conspiracy, what length could it go before it were discovered? And your single blackguard, or the first of your conspirators, punished as he would be for his very first exploit, stopped in his career at the very outset, where would be his perseverance? As to your own all-perfect system,—what it does admit, is your apprehended mischief: what it does not admit, is this natural, or any other, remedy. At the instance of Mr. Horne Tooke, when on his trial for treason, Pitt, the minister of the day, with a crowd of other state-worthies, delivered his reluctant testimony. The relevance was at any rate not very close: suppose irrelevance as complete as possible; what burthen, under the name of punishment or satisfaction, could have been imposed on the author of the vexation? None whatever.

Default is the non-performance of that act, to secure the performance of which, any act, prescribed in the character of an act of notice, was really or professedly designed.

On an occasion of this sort, is it necessary, can it be necessary, to state to common sense what would be the part taken by common honesty?

Under the natural system, the occasion for notice, and eventually default (be it what it may,) will be either subsequent to the first appearance of the party before the judge, or antecedent, consisting in non-appearance.

If subsequent to such appearance, there can be no difficulty. At the first appearance, measures are supposed to be already taken (since in every case they may be taken)—effectual measures, taken without difficulty, and with full warning of the consequences of neglect, for the continuation of the intercourse as long as it can be necessary for any of the purposes of justice. If antecedent to such appearance,—then, for the purpose of giving him official and sufficient notice, sufficient information of the nature of the burthen to which default may subject him,—personal intercourse with the party himself is by the supposition impracticable. But, with the adverse party, the plaintiff,—the party at whose instance the rendering of this service by or at the charge of him the defendant is prayed for,—this intercourse has, by the supposition, taken place. The defendant by the supposition is not forthcoming: intercourse with him hath as yet been found impracticable: simple latency, absconsion, expatriation, exprovinciation;—which of all these accidents is the cause? Whosoever he be, whosoever he is or has been,—relations, neighbours, acquaintance, some or all of these, if he is a human creature, he must have had. From these sources, or some of them (if the acquaintance which the plaintiff, his adversary, has with him, be not of itself sufficient,) information concerning him will be to be obtained: and, for the indication of these sources of information, the plaintiff, who is so much concerned in interest to afford it—the plaintiff, if it be not in his power of himself to afford sufficient information, may at any rate be relied on as a sure resource.

Though a channel of correspondence be settled upon, and agreed to be employed, yet, on legal occasions, as on those of ordinary life, the process is exposed to failure; the channel that ought to have been employed, has not been employed; or, though employed, the intended communication has, after all, failed of being received by the person to whom it should have been made.

On this head, in natural procedure, as in ordinary life, the first question is, of course,—received or not received? If not received, then sometimes comes in the ulterior question,—to whom shall the failure be imputed? to the party by whom the notice should have been received? or to the party at whose instance, and by whose instrumentality (in the first instance at least,) the communication ought to have been made?

Under the technical system, the question, received or no? is a question never made: instead of it, good or bad? is the only question ever heard of, in regard to notice. If good, no matter whether received or no, it will be deemed to have been, or (what is the only material thing) acted upon as if it had been, received. If bad, no matter, again, whether received or no: it will be deemed not to have been received; and upon that supposition will the conduct of the judge be grounded.

The notice is regarded as good, when the communication is supposed to have been made according to the forms which have been settled, or supposed to be settled. Made according to these forms, it is not the less good for not having been received. Made in a manner varying, or supposed to vary, in any respect, from these forms, it is not the better for having been received.

According to the principles of common honesty, the points aimed at have been already stated: that, wherever notice is requisite to justice, notice be not given only, but, whereever actually received, be deemed to have been received; and that the operations employed for the giving and the receiving of it be as free from delay, vexation, and expense, as possible.

Given the situation of the north; given also the situation of the south. Given the points aimed at by common honesty; given, in like manner, are the points aimed at by common law:—that the notice requisite to justice may, as frequently as possible, fail of being received; that, when actually received, it may as frequently as possible fail of being deemed to have been received, to the end that he by whom it was given may be dealt with as if he had not given it; and that the operations relative to it may be in such manner attended with delay, vexation, and expense, as to yield to the partnership as large a mass of profit as possible.

The courses taken for the fulfilment of these ends are by far too multifarious to be here particularized. The diversifications agree in this, viz. that, besides being needlessly dilatory, vexatious, and expensive, they are as inadequate as they can be made: the commodious channels presented by the improved state of society being industriously neglected, all real means of intercourse being inexorably declined. How should it be otherwise? To employ them, the judge would have to see and hear parties with his own eyes and ears: and to see and hear parties would be to give up the ends of judicature.

On favourable occasions, sham communications are employed without disguise: the forms of communication being employed, under circumstances in which it is known that the information pretended to be communicated will not be received; viz. either will not be received at all, or will not be received time enough to answer the pretended, and not intended, purpose.*

The forms prescribed to be employed in the first instance being elaborately inadequate, profit flows in through a variety of channels. Suits on the question whether the notice given was good or bad: the notice, though good, not having been received, suits for relief from the consequences: notice given in the first instance being found bad, demand for fresh notice: the only form of communication allowed to be given in the first instance, being upon the face of it, or by experience found to be ineffective, or reasonably or unreasonably apprehended so to be,—motion that communication made in some other way may pro hâc vice be held good.†

Parties excluded, discussions about notice rest of course on the ground of affidavit evidence. No questions asked! the essential character and use of affidavit evidence. No questions asked! the resource and motto of fraud, on all occasions, and in all places. No questions asked by receivers of stolen goods—no questions asked by learned judges.

Notice of the fact, on which, according to law, a proceeding at the charge of one or other of the parties is to be grounded,—notice of any such fact is nothing, unless the notice of the law accompany it: means of compliance are presented to view; motives for compliance, not.

One grand and standing object is, accordingly, to keep the law in a state as incapable as possible of being conveyed to notice. That which exists not, is not a subject of knowledge. Hence the matter of another device; the unfeigned love and indefatigable magnification of that sham law, in England denoted by one of the half dozen senses of the term common law, and in France so much more appropriately by jurisprudential law, or jurisprudence. Hence also the accessory devices embroidered upon that ground; jargon in all its forms, fiction, and the double-fountain principle: all which see.

In respect of the mode best adapted to the conveyance of notice; besides the diversifications above hinted at, as resulting from the state of society, others of a more permanent nature are suggested by circumstances of diversity, such as, under the system of common sense and natural procedure, are too obvious to be overlooked. The party sui juris, or under power, of one sex, or the other: in a state of perfect sanity, or in a state of comparative imbecility, through immaturity or caducity of age: the party a housekeeper, or not: if not a housekeeper, has he a fixed abode, or is he in a state of itinerancy: his abode known, or as yet not known: within, or not within, the geographical boundaries of the jurisdiction of the court. From these and other diversities in respect of condition in life, may arise a demand for diversification too obvious to need, and requiring too many words to admit of further mention here.

To these natural and rational sources of diversification, the technical system (in England at least) has substituted others, more suitable to its purposes, and more congenial to its nature: diversity of courts, diversity in the sorts of causes, and diversity of stages in the same cause.

In French practice, the defendant, after he had given authority to an attorney to act for him, was called upon to elect his domicile: meaning neither more nor less than this, viz. to name the house, to which, whatsoever communication for the purpose of the cause might require to be made, being made accordingly, shall be presumed to have reached his hands. The domicile so elected was the office of his attorney. Between client and attorney, so long as the relation and the confidence attached to it continues, it is not in the nature of things that any evasion or detrectation of intercourse should exist on either side.

In England, as in France, and everywhere else (even under the natural system,) to whomsoever the misfortune falls of being obliged to employ an attorney, the office of the attorney will in general be (regard being had to the interests of both parties) the most eligible domicile: and, if at the outset of the suit, so through every subsequent stage of the dispute, whatsoever turns it may happen to it to take.

Under the technical system in England, election of domicile does take place, and it does not take place.

It does take place, in this respect:—The greater part of the business done being sham business—business made to make fees, business which has nothing to do with the merits; what is done and received in the party’s name is not communicated to him. Having (lest the uselessness of it shall be perceived) been rendered unintelligible to him, it is convenient to the lawyer, and not disadvantageous to the client, that he should be spared as much as possible the plague of hearing of it. Without any election, the domicile of each attorney is known or knowable to every other; and thus far, without any such election in form, the effect of it takes place.

It is the interest of the partnership that as much intercourse as possible should be kept up between the professional members of it on the opposite sides of the cause, the one with the other, and as little intercourse as possible between one party and the other, and between each party and the lawyer on the other side. Between the party and his lawyer, it is neither in their inclination nor in their power to prevent or impede the intercourse.

But, in addition to this sham business, in the course of which, though everything is supposed and asserted to be done by the party, nothing is done by him in effect—in addition to this sham business, to which the party is not, unless by accident, privy—business will every now and then arise, which cannot be done unless the party knows of it. Here then would be an occasion in respect of which, if justice instead of fees had been the object, election of domicile would have been made to take place: service on the client would have been performed by service on his attorney.

But among the sources of fees is evasion of notice: evasion, real on one side—apprehended, or pretended to be apprehended, on the other. By election of domicile, Anglicè by causing service on the attorney to be in all cases service on the client, this source of fees would have been dried up. Accordingly, such permanent election of domicile is unknown to English practice.

The persons to whom notice is addressed are either known or unknown: unknown, as in the case of creditors.

When the debtor is alive and forthcoming, common sense would direct men in the first instance to the debtor. Technical judicature finds always some other channel of correspondence better adapted to its purposes.

Scotch judicature for example,—besides the pier and shore of Leith, has the Minute-book and the Wall: the pier and shore for fugitives;* the minute-book and the wall for creditors.†

Rule: If notice be not conveyed to those whose interest it is to receive it, be sure that either its being received is not for the advantage, or that its not being received is for the advantage, of those on whom it depends.

Think on this occasion of Bank Directors, and unclaimed dividends. Think again of Lord High Chancellors, and Masters of the Rolls, and unclaimed pittances of miserable suitors: and see by what omnipotence it is that the money employed in augmentation of masters’ salaries is created out of nothing.

Behold in each master’s office a gulf, by which, when a man’s money is swallowed, either his right to it is concealed from him, or, if he know of it and claim it, more is squeezed from him than is paid. First men make the wrong, then they make their profit from the wrong: nor is that enough for them, but they must have praise for it.

Sham notice presents two main modifications: 1. When notice pretended to be given is not given, not being meant to be received; 2. When, received or not received, it is manifestly incapable of answering its pretended purpose. In the one case it is ineffective, in the other useless. By the English practice in the case of outlawry, in the class of causes called civil causes, an example may be seen of both these modifications, according as it is considered in its application to the one or the other of two descriptions of persons: persons out of reach of the pretended notice (whether put into that state by latency, expatriation, or ex-provinciation;) and persons incapable of profiting by it, being incapacitated by indigence.

Process of outlawry* is a mode of proceeding by which a man is put into the condition of an outlaw. To be in that condition, is to forfeit all his goods and chattels, together with the profits of lands: goods and chattels upon the performance of the first ceremony—profits of lands after other ceremonies, all of course yielding their fees. Add to this, perpetual imprisonment, if he be caught; besides other plagues in plenty, not worth detailing after these.

Who are the persons whom the partnership has subjected to this fate? Two descriptions of persons: those who have not wherewithal to defend themselves from it, that is, to employ lawyers to defend them; and those who, for any cause (be they ever so poor or ever so rich,) happen to be so circumstanced as to be out of the way of receiving the notice. Not that, on this occasion any more than others, the condition of poor and rich is exactly upon a par. A difference there is, and it may easily be imagined in favour of which side. A rich man, unless he be uncommonly unfortunate, can be kept in it only for a time: a poor man continues in it for ever, and without remedy.

To put a man in it, is a power given to every other who is content to pay the price. Proceeding in a particular course, chalked out for this purpose, a man brings an action against you for anything that comes uppermost: no matter what it is, since it is not necessary that it should have the smallest foundation in fact: and if one carried on in this way is not sufficient to ruin you, he brings as many more as he pleases. The great majority of the people are unable to employ an attorney to defend them respectively in any one such suit; much more in any number of such suits, increasable without stint: consequence,—outlawry, as above described.

There are two principal offences, to which, as already intimated, this punishment is annexed. One is poverty; or rather (reference being had to the circumstances of the plaintiff) inferiority of affluence. The other is expatriation: being out of England: whether for a man’s own business or pleasure, or in the public service, makes no difference. While a soldier is bleeding for his country at the antipodes, judges in England have a shop open, in which they are ready to sell his liberty, with the faculty of destroying his property, to any one who will come to them and pay the price for it.

Previously to a man’s being sentenced to this punishment, a notice, in some shape or other, must in every case be given to him. But it is not necessary that in any case he should have received it. He never does receive it: it never is intended that he should it is always intended that he should not: it is always a sham notice. The man is in the East Indies: the notice consists of a mess of jargon, muttered by an attorney’s clerk, in some office or public house in London,† calling upon the man to appear there or thereabouts in a few days.

The case in which a man cannot be outlawed for nothing, without risk to the person at whose instance this punishment is inflicted on him, will help to show (if it be necessary to show) that it is not for want of knowing how to remedy it, that those who profit by this enormity persevere in the commission of it.

On a criminal prosecution, it cannot be practised as above mentioned without risk. The necessity of a bill found by the grand jury is the bar to it. Not that the power given to that sort of court is the real obstacle: the real obstacle consists in the oath attached to the testimony, without which the bill could not be found: i. e. to the punishment attached to it in case of falsity. The same punishment would afford the same security, grand jury or no grand jury.

The observation is necessary: otherwise a lawyer would have his answer ready: in civili you cannot have the same security against groundless outlawry as you have in criminali, because in criminali you have a grand jury, and in civili you have none.

To put an end to this abuse, along with many others, what is wanted is, no jury, grand or petty, but personal appearance of the plaintiff coram judice, for the purpose of examination upon oath, in the first instance.

[* ]Comm. Rep. on Imprisonment, April 1792. 27 Rep. of Committee of Finance—Appendix—Prison Fees.—[Vide supra, Vol. VI. p. 178 Note.]

[* ]Of communication made in a form contrived for the purpose of being ineffective, the case of the three distringasesa (though, in that case, compulsion is in a manner combined with notice) may serve in some sort for an example. Real object, the forcing the corporation to employ an attorney, that the suit may commence and go on in technical course: form of communication employed (instead of sending for an acting member of the corporation, and speaking to him,) a sort of pantomine; a few shillings-worth of their goods seized, or pretended to be seized, and a few months afterwards a few shillings-worth more. By virtue of this sort of communication, at the end of seven or eight months the attorney is set to work, and commencement given to the suit.

[† ]That “service” (as the phrase is,) made in this or that particular way, may be “good service.”

[* ]The method of citing persons out of Scotland by proclamation at the pier and shore of Leith, is now abolished in almost all, if not in all cases in which it was formerly in use, and intimation by means of a record kept at the General Register-House, and printed for distribution, is substituted.—Ed.

[† ]Lawrie, p. 180.

[* ]1 Tidd (Edit, 1803,) 125.

[† ]When a man is transformed into an outlaw, a caput lupinum, a wolf’s head, as we learn from the highest authorities, takes place of the original head planted by nature upon his shoulders.a While John Wilkes was in Paris, an attorney’s clerk performed this metamorphosis upon his head, by pronouncing the magical words at a public-house called the Three Tons, in Brook Street, Holborn. A discovery was made, that one of the words belonging to the formulary was wanting or misplaced. The effect of this discovery was, to replace upon the shoulders of the blasphemer his natural head, such as it may be seen in Hogarth’s print of it.

A list of persons is periodically published under the name of the East-India Directory. A monthly list, called Steele’s List, shows such of the king’s subjects as are serving their country at different stations, in the naval branch of his service. In the periodical book called the Court Calendar, may be seen the names of others of his majesty’s subjects, serving in various foreign stations. All these, together with all the inhabitants of all the colonies, form a part of the whole number of persons whom, without the shadow of a cause, without inquiring into the cause, and under a determination not to inquire into the cause, the judges of all the courts are ready, on all appropriately fixed days, to sentence to this punishment, at the instance of anybody who will pay the fees.

Selden, as he tells us in his Table Talk, outlawed the king of Spain, for not making his appearance in Westminster Hall, in pursuance of a notice thus delivered.

[* ]Of communication made in a form contrived for the purpose of being ineffective, the case of the three distringasesa (though, in that case, compulsion is in a manner combined with notice) may serve in some sort for an example. Real object, the forcing the corporation to employ an attorney, that the suit may commence and go on in technical course: form of communication employed (instead of sending for an acting member of the corporation, and speaking to him,) a sort of pantomine; a few shillings-worth of their goods seized, or pretended to be seized, and a few months afterwards a few shillings-worth more. By virtue of this sort of communication, at the end of seven or eight months the attorney is set to work, and commencement given to the suit.

[† ]When a man is transformed into an outlaw, a caput lupinum, a wolf’s head, as we learn from the highest authorities, takes place of the original head planted by nature upon his shoulders.a While John Wilkes was in Paris, an attorney’s clerk performed this metamorphosis upon his head, by pronouncing the magical words at a public-house called the Three Tons, in Brook Street, Holborn. A discovery was made, that one of the words belonging to the formulary was wanting or misplaced. The effect of this discovery was, to replace upon the shoulders of the blasphemer his natural head, such as it may be seen in Hogarth’s print of it.

A list of persons is periodically published under the name of the East-India Directory. A monthly list, called Steele’s List, shows such of the king’s subjects as are serving their country at different stations, in the naval branch of his service. In the periodical book called the Court Calendar, may be seen the names of others of his majesty’s subjects, serving in various foreign stations. All these, together with all the inhabitants of all the colonies, form a part of the whole number of persons whom, without the shadow of a cause, without inquiring into the cause, and under a determination not to inquire into the cause, the judges of all the courts are ready, on all appropriately fixed days, to sentence to this punishment, at the instance of anybody who will pay the fees.

Selden, as he tells us in his Table Talk, outlawed the king of Spain, for not making his appearance in Westminster Hall, in pursuance of a notice thus delivered.

[a ]Vide supra, Chap. IV. p. 221.

[a ]This applied to outlawed felons. The passage in the Mirror relating to this subject, is exceedingly curious. If the felon refused to come in, it was lawful for any one to treat him as a wolf, and kill him; and for every head of an outlaw so killed, a reward was awarded of a demimark. Ch. IV. § 4. It would now, however, be as much murder to kill an outlaw, as to kill any other person. 1 Hal. P. C. Ch. xiii.—Ed.