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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 XIV.

NINTH DEVICE—PRINCIPLL OF NULLIFICATION.

The instruments and operations to which the principle of nullification is in use to be applied, may be divided into two classes,—non-judicial, and judicial. Of the non-judicial class, contracts (including agreements and conveyances) present the most extensive as well as most familiar example. These belong not to the present purpose; but (so close is the analogy) what is here said with reference to judicial instruments and operations, would, without much exception or difference, be found applicable to those others.

Applied to a judicial operation or instrument, the effect and object of the principle of nullification is (according to the most comprehensive description that can be given of it) in the case of an operation, to cause that to be considered as not having been done, which has been done:—in the case of an instrument, or a clause or portion of an instrument, to cause that to be considered as not existing which does exist.*

Examples:—Order from the judge to the party to appear in person, at a certain time and place. He appears accordingly:† this appearance is null and void: for this obedience he suffers as if he had not obeyed. Suffers! Why? Because the pleasure of the judge was (as he ought to have understood, the order being to the contrary,) that he should not appear in person, at that or any other time and place; but should employ an attorney to appear instead of him, at other times and places.

Defendant proved guilty of a capital crime; found so by the jury: acquitted afterwards by a judge. Why? Because, in the description of the crime, a lawyer, whom the prosecutor was obliged to employ, had omitted to employ a particular word, which neither legislator nor judge had ever ordered to be employed, and which was not in the language. For the purpose of giving impunity to the criminal, the judge makes the rule, pretending to find it ready made.

On a more particular view, the effect of the nullification principle in respect of the ends of justice will be seen to be different, and indeed opposite, according as it is in favour of the plaintiff’s or of the defendant’s side of the cause that the operation in question has been performed, or the instrument in question exhibited.

1. In favour of the defendant’s side; if the suit be a criminal one, the object of the suit (the application of punishment to the defendant, if he be guilty) is either prevented altogether, or retarded: so, if it be a non-criminal suit, the administration of satisfaction to the plaintiff: for example, the causing him to receive a sum of money that is his due.

2. In favour of the plaintiff’s side; if the suit be criminal, the effect of the nullification is to cause the defendant to receive punishment, and that punishment undue: if the suit be non-criminal, then, on the score of satisfaction, to render to the plaintiff some service, and that service undue.

From causes which lie too wide of the present purpose, so it is that,—in comparison with the instances in which the operation of it is in favour of the defendant’s side, especially in criminali,—those in which it is in favour of the plaintiff’s side (in such sort as that the defendant shall, either on the score of satisfaction or on that of punishment, be subjected to a burthen which is not due) would be found extremely rare. In other words, the effect of it is much more frequently to paralyze the force of the law, than to give a wrong direction to it. This, therefore, is the effect which in general, and unless on special notice to the contrary, it will be proper to consider as attached to the application of this principle.

To which side soever of the cause the operation of the principle applies, the effect of it is susceptible of two other distinctions, which require to be observed:—

1. It applies either to the whole number of steps taken, or about to be taken, in the cause, or to some part only of that number. In the former case, the nullification may be said to be complete;* in the latter case, partial.†

Thus, in another and fairer and honester as well as pleasanter sort of game, the royal game of the goose, one sort of unlucky cast throws you back only a part of the way you have made; another, the whole of it.

2. Again: Where the nullification is complete, in some instances it has the effect of operating as a bar,—on the plaintiff’s side, to all ulterior demand, to all fresh suit on the same score,—on the defendant’s side, to all ulterior defence; in other instances, not. In the former case, it may be termed definitive or peremptory; in the other case, dilatory or temporary, or rather non-peremptory.

Another distinction: The cause of nullification,‡ —the pretended irregularity in the operation, or the pretended vice or defect in the instrument,—may be made to operate backwards only, or forwards only, or both ways.

The principle of nullification is what Lord Bacon would have called a polychrest: a constellation of injustices.

1. If the article of substantive law which it serves to frustrate be in the form of statute law, it not only contributes to the uncertainty of the law, but contributes to undermine the authority of the legislator, substituting that of the judge in place of it. In the individual case in question, it repeals the law of the legislator pro tanto; and it serves as an example and an encouragement to judges to repeat such acts of repeal in other instances.

2. Although the article of substantive law thus frustrated exist in no other form than that of a rule of jurisprudential law,—in other words, if it be no more than a sham law, made or imagined by a judge, without any determinate set of words to put it into, instead of an article of oral law, made by the legislator in a determinate set of words,—in this case, though no such advantage is made as in the former case in the way of usurpation, yet in the way of uncertainty the advantage is the same. The substantive law, which was of itself uncertain, as being in the form of jurisprudential law, is rendered still more so, by the shock thus given to the system of adjective law, on which its execution depends.

3. It possesses, and in a pre-eminent degree, the virtue of an ex-post-facto law. Whatever general rule of law is established in the way of jurisprudence, that is, by judges, acting as such, is in effect an ex-post-facto law. The mischief of an ex-post-facto law consists in its being unexpected: whence, the suffering produced by it is at once inevitable and unnecessary: unnecessary, since an article of statute law to the same effect would have produced all the good, without any of the suffering. But what can be so unexpected as that a malefactor should be acquitted, because a clerk has written a wrong word?

4. It punishes one man, for the fault, or the supposed fault, of another. It punishes the party injured, it deprives him of redress, because an attorney’s clerk, or a clerk under the orders of the judge himself, has written a word, which is supposed to be wrong. Under the natural system, an error being discovered, if it were deemed worth correcting, it would be corrected, and the suit would go on as if there had been no error: but under the technical system, such correction would not serve the ends of judicature.

The more foreign the ground is to the merits, the more the decision contributes to the giving to the law the desired appearance of a lottery, in which a favourable decision is a prize, and the tickets, the prices paid by plaintiffs and defendants for their respective chances.

5. In all cases of a criminal nature, it serves for lodging the power of pardon in hands unknown to the legislator. The lower and more numerous the hands, so much the better; so long as the power of allowing or disallowing the pardon is reserved in the hands of the judge. The persons in which this power is vested, are all the persons to whose mistake, or supposed mistake, this consequence is annexed: every attorney or attorney’s clerk, every official clerk or official clerk’s clerk. If the consequence is settled, and the clerk unpunishable, the clerk is, in respect of this prerogative, more of a king than the king himself; for the king cannot pardon without the concurrence of at least two other persons,* and the clerk needs no concurrence, but what, by the supposition, he is sure of.

A decision which is not grounded on any alleged cause of nullification, is said to be grounded on the merits:†è converso, a decision which is grounded on an alleged cause of nullification,‡ is not grounded on the merits.

Under the technical system (but more especially under the English edition of it,) a judge says, with equal facility and indifference, my decision was grounded on the merits, or, my decision was not grounded on the merits. In some future age, such openness will appear hardly credible. In each case, a shorter phrase might serve:—My decision was according to justice; or, my decision was contrary to justice.

A decision not grounded on the merits, bears upon some ground foreign to the merits—upon some alleged cause of nullification, some quirk, some quibble.

When the decision is in favour of the quirk, it is then simply and decidedly a decision against the merits. Yet, when it is against the quirk, it is only sub modo that it can be said to be in favour of the merits.

The back of the judge is turned upon the merits, not only when he decides in favour of the quibble, but at an earlier period; viz. when he takes upon him to listen to an argument on the subject of the quibble. Then is it that one offence against justice is committed; and, if the decision is in favour of the quibble, that makes a second offence against justice.

Whether the decision be for or against the quibble,—point blank against, or to a certain degree in favour of, the merits,—mischief to the community (it will be seen) is produced, advantage to the man of law. When it is for the quibble, a portion of mischief (it will be seen) is produced, over and above what is produced in the other case.

But it would be an error were it supposed, that, by a decision pronounced against the quibble, any sacrifice is made of the ends of judicature, of the interests of the partnership. That the service habitually rendered to that interest may be at its maximum, it is necessary (it will be seen) that the instances in which the decision is against the quibble, and, so far, for the merits, should be frequent. Equality is as good a proportion as any other. It is where the numbers of decisions for and against the quibble are seen to be equal, that the uncertainty is at its maximum; and uncertainty is the mother of argument, that is, of business.

Suppose the question were, whether the length of your nose should operate as a reason for depriving you of a sum of money proved to be due to you: and suppose the decision in the affirmative. Would the injustice commence with the decision? No, surely: it would commence with the argument: or, to speak strictly, with the token (whatever it were) by which it had been manifested that arguments pro and con on that question would be heard.

The exemplification may appear ludicrous; but the purpose of it is a grave purpose. Among the quibbles, on the ground of which decisions have been given against the merits, enough might be found in which the distance from the merits was not less, and in which the mischief done by the contempt put upon the merits was even more considerable. If, in that case, the outrage to justice present itself, at first view, as more flagrant than in these, it is only because in that case the colour of the ground is new (for which purpose it was chosen;) in those others, old, and the eye familiarized with it.

Fancy not, that if a premium had been offered to him who should invent the most absurd ground of nullification, the most flagrant injustice that could be committed on this ground, anything more absurd or more flagrantly unjust could have been invented than those quirks (sometimes successful, sometimes unsuccessful) which are to be found in such abundance in the books.∥

True it is, that, in the station of a judge, injustice can never be done, without a something in the character of a ground or reason; equally true it is, that, in that station, nothing can be imagined more irrational than what, in the character of a ground or reason, has been made, and may continue to be made, to serve.

Fancy not, that, if it had happened to the nasal reason to form the ground of a decision, reported in good law-French, the decision, with its ground, would have been defended with less pertinacity, or spoken of with less reverence, than any of those others which form so large a portion of the chaos called, in lawyer’s language, common law.

As to the uses of this device; the catalogue of them has already been in great part seen, in the catalogue of the mischiefs.

Use 1. Making business; viz. pro hâc vice. This use (as already observed) is the more peculiar fruit of the process of temporary nullification, in contradistinction to peremptory: but even where it is peremptory, the argument in that same cause is the fruit of the principle; and this whether the irrelevant objection be allowed or disallowed; since, on that ground at any rate, had it not been for the principle, there would have been no argument.

Use 2. Nursing uncertainty—the perennial source of made business, flowing from the land of quirks and quibbles,—in all future cases. But as to this use, see further, under the head of the Principle of Jargonization.

Use 3. Establishing and supporting arbitrary power. See further, Chap. XXIII. Double-fountain principle.

Use 4. Blinding the legislator: rendering the law unintelligible to him: putting it out of his power to see what is going forward, to form to himself any clear conception, either of what ought to be done, or of what is done. See again the jargonization principle.

Use 5. Awe-striking, as well as blinding, the people: causing them to regard complaint as groundless, and hopeless, and injurious, and culpable: deterring them thus from complaint, howsoever intense their sufferings.—See again the jargonization principle.

Use 6. Repelling the eye of the legislator by disgust. See once more the jargonization principle.

Use 7. Securing a fund of popularity.

This use is confined to the criminal branch of the law: the effect produced by the principle, when thus applied, being the acquittal of malefactors.

Such has been the success of hypocrisy in this line, that the deluded people have learnt to regard with sentiments of love and reverence and gratitude, instead of indignation, the treachery of those ministers of justice, who, by the help of this capital engine of iniquity, have persevered in the habit of giving aid and impunity to all sorts of malefactors.

If an advantage, so much greater than at the outset could naturally have been expected, contributed little or nothing to the creation of the technical system, it contributes at any rate in no small degree to the preservation of it.

Under this delusion,—the more ill-grounded, and (whether ill or well-grounded) the more excessive the lots of punishment are, which stand attached to acts prohibited under the name of crimes,—the more eager are the people to see this surreptitious and anti-constitutional power of pardon, thus employed, in eating out the very heart of the substantive branch of the law.

Hence, a sort of auxiliary device and resource of the technical system consists in adding in all practicable ways to the atrocity of the penal system: pouring out punishment, as from a cornucopiæ or a Pandora’s box, without regard to proportion or demand. This may be done in either of two ways: either by applying to the legislator and getting fresh statutes, or without any such trouble, by jurisprudential construction, screwing up misdemeanours into felonies: till at last there comes to be but one sort of offence, and that a capital one. It is thus that, under the auspices of hypocrisy, ambition and cruelty play into one another’s hands. By double iniquity, a man renders himself double service. By breaking the law, he receives the blessings of the people for his humanity, when, by making it, he has received their veneration for his love of justice.

Advice to judges. When a case of compassion presents itself (and the more atrocious the penal system, the more frequently will cases of that stamp present themselves,) instead of recommending to mercy, get the defendant off by a quirk. The defendant, for example, has stolen thirty-nine guineas: recommend it to the jury to value them at as many shillings. Observe, now, how many points you will compass by this one stroke. You reap the seven advantages already mentioned; and, besides all that, you cherish in the bosom of the people the habit of regarding with affection and respect the vice which is one of the main engines of your system, and cherish at the same time the habit of blind obsequiousness in the bosom of your rivals, the juries.

If,—you being on the ministerial side, as it is most natural for you to be,—the author of a real or supposed crime, particularly obnoxious to administration, comes under prosecution, and an attempt is made to save him by a quirk; you have a choice to make. On the one hand, you see the service you may do to your party by a due execution of the laws; on the other hand, the service you may render to your partnership by the violation of them. Your choice will depend upon existing circumstances: but it is a pleasant sort of a dilemma, not to be able to stir a step without reaping an advantage.

The popularity gained by this principle in criminal cases, will serve you for the support and defence of it in that other class of cases (non-criminal cases) in which the favour of the public does not extend to it. In these fat cases, the advantage reaped from the principle is much more substantial than in those other meagre ones. In criminal cases, at least in nineteen instances out of twenty, the defendant is mere skin and bone; the plaintiff, called prosecutor, little better. The effect of the flaw too is commonly peremptory, or it would not be worth noticing, or worth making. In non-criminal, called civil cases, costs come frequently out of the estate; and (be that as it may) the parties may be of any degree of opulence. Here, then, you make the effect of the flaw but temporary; and the quantity of business which the cause affords is thereby doubled.

The grosser and more abundant the pretences for nullification, the more easily may business be made, without the expense of treachery on the part of the professional assistants of the party who suffers by the flaw: and in this case, compared with the other, the encouragement to such treachery is much more inviting and more pure. Many a man who would not charge his conscience with the destruction of the innocent, or even, in a matter purely civil, with the final sacrifice of a client’s righteous cause, will be restrained by no such scruple from the lending a hand to the manufacture of a little extra business, by a slip too natural to attract notice.

In England, as elsewhere, the body of the laws may be divided into two parts: the beneficial, and the pernicious. Nowhere will the existence of the distinction be disputed; no, not even among lawyers: since what little there is in it that tends to the reduction of delay, vexation, and expense, may, even in the estimate of an official panegyrist, make sure of a station on the left-hand side. No man that will not admit the reality of the division: no two men who would draw the line exactly in the same place.

In England, however, the distinction is more marked than perhaps in any other country: the cause may be found in the mixed nature of the constitution, and the stages through which it has passed in its ascent to its present elevation. Be the constitutional law of the country what it may, the tenor and fabric of the law must ever be favourable to the interests and wishes of the individuals who, for the time being, are in possession of power: favourable to them, proportionally adverse and unfavourable to all whose interests run not in the same channel with theirs. Hence, taking the whole fabric together, there will exist continually, on the two opposite sides, so many perpetual and perpetually opposite contentions and endeavours,—on the side of those in power, to strengthen the system,—on the side of those out of power, to weaken it. The system imagined by the Manichæans for the government of the physical and moral world, is thus exemplified, in fact, in the ordering of the concerns of the political world.

Excellent as the constitution is in its materials and capabilities; supported as no doubt it has every now and then been by truly heroic exertions of public virtue,—neither wisdom, nor virtue, nor the union of both, will go any considerable length in accounting for the details of it. The features in it on which we pride ourselves with so much reason, and on which we may felicitate ourselves with so much more reason, are to be considered rather as diagonals resulting from the conflicting forces of personal interest, than as perpendiculars erected by virtue on the basis of wisdom.

The struggles between parties have frequently been struggles for existence. When existence is at stake, all other objects are eclipsed by it: everything bends to the present emergency.

When the adjective branch of the system is weakened in any part, the weakness extends to the substantive branch in toto: when the foundation of a house decays, the danger extends to everything that is above. But, when immediate destruction is in prospect, no price can be too great that holds out a hope of present safety. When law is against men, men will be against law. If, by a flaw introduced into the texture of the system of procedure, a precious life which otherwise might have fallen may be saved, any future mischief that may by contingency creep in at the flaw makes no impression on the mind. The beam I introduce to support a falling house, may be pregnant with the dry rot; but if the house would fall without an immediate prop, and there is no other within reach, the beam goes up of course, all thought of the dry rot is put aside.

The sacrifice of future contingent good to greater present good, is reconcileable to the dictates of the purest wisdom. What the dry rot is to a house, the principle of nullification—the principle according to which decisions are pronounced on grounds foreign to the merits—is to the system of adjective law, and the system of substantive law which rests upon it.

It is applicable to the purpose of saving from the power of the law any sort of person, be he who he may, so he be for the moment exposed to its penalties: the corrupt placeman who abuses the powers of government, or the patriot who opposes his resistance to the abuse.

When, in a penal case, on a ground foreign to the merits, the decision is against the merits, it destroys pro tanto, in the individual case in question, the power of the substantive law. It destroys the power of a bad—it destroys the power of a good, law. Considering it in the light of a perpetually applicable and all-extensive principle, is it not, however, capable of meriting, upon the whole, the appellation of a beneficial one? In idea, yes: but upon what supposition? Upon this; that, in the substance of the penal system taken together, there is more evil than good: in other words, that it would be more for the advantage of the country to have no penal laws at all, than such as are actually in force. Upon any other? Upon this other: that, the good and the evil being in equal proportions, the application of the nullifying principle is more likely to fall upon the evil than the good. On either of the above suppositions, but on no other, is the nullifying principle, this favourite and ever busy principle, anything better than an execrable nuisance. But for either of these suppositions is there any the smallest ground?

The true remedy is, what? So obvious, the pen is almost ashamed to write it. To rid the substantive system of the peccant matter; not to introduce into the adjective system a principle of debility, by which the efficacy of the good and bad is reduced together, and alike.

When Wilkes, the victim of the court, and the idol of the populace, was prosecuted for the two writings, one of which had been the cause of the resentment and the other furnished the means of gratifying it,—in the instance of this delinquent, as of every other, the licensed accessaries after the fact, consulting the oracle of chicane, betook themselves to the principle of nullification for the means of safety. Their researches presented to them, in one of the legal instruments, one of those imaginary flaws, on which inquity under the mask of humanity has bestowed the power of rescuing delinquency from the pressure of the law. But the demon to whom, even in mischief, all certainty is odious, had provided an instrument by which, if applied in time, flaws of that kind may be closed: not amended, the flaw would have been a fatal one: but, to flaws of this description, power had been in the habit of applying a remedy. Addressed in proper form, the judge (Lord Mansfield) substituted the valid slang to the invalid slang.* Immediately Westminister Hall was in an uproar: what could not be done by reason, was to be done by noise and calumny. The forgerer who inserts a word in a deed, alters it: the judge who amends a record, alters it: the cry was, He has altered the record and what you were to understand was, that he had committed an act of forgery on it.

To the enabling the partnership to turn to the best account the principle of nullification, the form of jurisprudential law was indispensably necessary. Without the aid of that deceptitious form, something might indeed have been done by so convenient a principle, but nothing in comparison with what has been done.

As in the substantive branch, so in this adjective branch, the law, if it had not been in the form of jurisprudential, would have been in the form of statute law. In that case, whatsoever it had required to be done, in the course of the cause, by either party (suppose the plaintiff)—whatever operation it had required to be performed—of whatever tenor, purport, or effect, it had required an instrument, on this or that occasion, to be delivered,—it would have given a description of that operation, of that instrument: and, if on pain of nullity, intending that such should be the consequence of failure, it would have given warning to that effect.

Of the legislator (except in so far as it might happen to him to be corrupted or deceived by the man of law,) the object would of course be to render such failures as rare as possible: to that end, he would as surely have pursued the course just mentioned: whatever on each occasion his pleasure were, he would have declared it. If it be your wish that your servant should go on an errand to a particular place, you tell him so, mentioning the place: you do not (unless you are perfectly assured of his knowing already) leave it to him to guess that you want him to go on an errand, and to what place.

Of the partnership (for the sake of the profit drawn in by means of the principle of nullification, by the reiteration of operations and instruments, together with the other less prominent advantages) the object was, of course, to make such failures as frequent as possible.

Their first and constant care accordingly was, that no such directions should ever be given. The foundation, a foundation not the less sure for being negative, having thus been laid for these failures,—causes of failure, and consequent grounds of nullification, were built in infinite numbers upon the foundation so laid. Day by day the party in the right was punished—punished with the loss of his due, because his lawyer had omitted to fulfil directions, which, lest they should be complied with, had been omitted to be declared to him, or so much as to be framed. The directions which should save the suitor from being deprived of his due by his own lawyer, where are they to be found? Upon the blade of the sword that Balaam wished for.

This was not yet enough. While A was punished for the disobedience of B to the unuttered and unutterable directions, care was taken to place them out of the danger of being guessed at. Absurdity and inconsistency, figures which cost as little to the English lawyer as prose did to Monsieur Jourdan, secured this point without difficulty.

In punishing one man for another’s not having done so and so, it was not possible to avoid altogether the giving of some sort of description (how inadequate soever) of that, for the not doing of which, the punishment was inflicted. A description of this sort, though, on the occasion of the cause in hand, and in the character of a direction, too late to be of use, might yet, if committed to memory or writing, supply in some sort, as far as it went, the place of a direction, in some future contingent cause. Though not itself a law, a general law, it might, to him who should be diligent and fortunate enough to catch it and preserve it, answer in some sort the purpose of a law. A professional lawyer having nothing to do in the cause, would (for his own instruction, or on a commercial speculation, in the view of the profit to be made by selling the information to others) commit every now and then to paper, and eventually publish, in a suitable mass, a body of instruction of this sort thus collected. It is thus that the sort of discourse has gradually been accumulated, which, by an abuse of words peculiar to the English language, has, under the common denomination of law, been confounded with the genuine expression of the will of a legitimate legislator. Of this nature at least is the largest and least bad part of the materials that enter into the composition of it. A collection of imaginary laws, which, had they been real, would have been ex-post-facto laws.

Had these spurious laws been of a rational complexion, conformable to, and such as would naturally have deen dictated by, a regard to the ends of justice—had they been such as, if framed and communicated in such manner as to afford a possibility of complying with them, would have been conducive to those ends—had they at the same time been regularly committed to writing, and made public,—little by little, in the course of a few centuries, the mass of sham and spurious law so formed might (to the effect of preventing such failures) have (though in a very imperfect and incongruous manner) supplied, to the extent of it, at each point of time, the place of genuine law. Little by little, the pitfalls so carefully left in the field of law would have been filled up, as in the siege of a fortified town the ditch has sometimes been filled up, by the bodies of the slaughtered. The ideal laws, the quasi laws, thus formed, being each of them conformable to the ends of justice, would have been consistent with one another: the place of promulgation might in some sort have been supplied by analogy: from two such already made laws put together, a suitor might have learned upon occasion to foresee a future one: in like manner, though unhappily not with equal certainty, as from two angles of any triangle the mathematician knows how to deduce the third.

This possibility was to be avoided: and the avoidance of it was not difficult. The more absurd a decision is, the more impossible it would have been to divine it: and the more irreconcilably repugnant to each other two decisions are, the more impossible it is to deduce from them a third. Accordingly, the wit of man never has devised, nor, under the stimulus of the highest premium, would be capable of devising, absurdities and inconsistencies grosser than are to be found in what are called the books, in such disastrous abundance.

How could a cover for injustice be ever wanting, when it had been made known by every day’s practice that a syllable wrong written, or pretended to be wrong written, by a lawyer’s clerk, was enough to make the client lose his due!

Would you see a short proof of two propositions at once: that the nullification principle is a mere instrument of iniquity; and that, by those who are in the constant use of it, it is known to be so? Behold it in this one circumstance. In a variety of instances, a flaw being suspected—a flaw that, if not amended in time, might (it is supposed) subject the instrument to nullification,—application is made, and permission granted for the amendment of it. The permission, when thus granted, is it made use of? Not it indeed. Why should it? The defect being an imaginary one, amendment is of no use. The flaw being a sham, the amendment may be so too: as, on another stage, a sham sore leg is cured by a sham remedy. Defect, amendment, argument, deliberation—everything is a sham, but the iniquity and the pillage.

Uncured, the flaw would have made business: cured, it makes business likewise. Cure or no cure, what matters it, so it produce equal business?

[* ]In this point of view, the principle of nullification may be considered as a modification or application of the principle of fiction. See the Chapter on that device (Chap. XVIII.)

[† ]Vide 31 Reg. Gen. H. T. 2 Will. IV.—Ed.

[* ]Synonyms,—thorough; entire; pure and simple; operating (in the language of school logic) simpliciter.

[† ]Synonyms,—limited; operating secundum quid, in the language of school logic; quoad hoc in the language of jurisprudence.

[‡ ]Synonyms,—quirk, quibble.

[* ]The keeper of the privy seal, and the keeper of the great seal. [The sovereign can now, by 6 Geo. IV. c. 25, grant a pardon under the signmanual, with the concurrence of only one of the principal secretaries of state. Vide supra, Vol. II. p. 579.—Ed.]

[† ]Gallicè, portant sur le fond.

[‡ ]Gallicè, portant sur la forme. In the French expression there is less perspicuity, but, on that very account, more decency. The outrage to justice, though the same in spirit, is not openly avowed.

[∥ ]In 1826, a man named Sheen was tried at the Old Bailey, for the murder of his illegitimate child. It was clearly proved, that he cut the child’s head off: but as the names by which the child was known were not accurately set out in any of the counts of the indictment, the murderer was acquitted.—A very remarkable case occurred in Scotland in 1806. John Hannay was tried for the murder of Marion Robertson, daughter of John Robertson, late wright in Westcroft, &c. It turned out in evidence, that John Robertson was not a wright, but a tailor. On the objection being taken, the jury, at the request of the Crown, found the prisoner “not guilty of the murder specified in the indictment.” The object of this special verdict was, to form a ground for trying the question, whether the prisoner could be brought to trial on a corrected indictment: it was found that he could not. See 2 Hume’s Criminal Law, 197.—A case is reported by Leach (545), in which a married couple escaped conviction for stealing from a lodging-house, because it was stated in the indictment, as hired by the husband, whereas, the negotiation, though commenced by him, was concluded by the wife.—Ed.

[* ]The Author has here misconceived what was really done by Lord Mansfield. The form of proceeding against Wilkes was by information, for publishing two libels. Just before the trial (which took place on the 21st February 1764,) the records being made up and sealed, the counsel for the crown thought it expedient to amend them, by striking out the word “purport,” and substituting the word “tenor.” As it was in vacation time, application was made to Lord Mansfield, at his house, and he at once granted a summons to show cause why the amendment should not be made. The defendant’s attorney attended his lordship, and though he had no objection to urge against the amendment, he could not consent to it. The amendment was made accordingly, and no notice taken of it by any of the counsel at the trial. Not until the 20th April 1768, when Wilkes voluntarily appeared in court, was any objection made to this amendment, which was then characterized as being unconstitutional and illegal. The point was subsequently argued, when it appeared, from numerous precedents, to be a usual course of proceeding. No doubt of the legality of Lord Mansfield’s act seems ever to have been entertained in Westminster Hall, but a great clamour was raised against him out of doors. 4 Burr. 2527.—Ed.