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CHAPTER XV.: TENTH DEVICE—MENDACITY-LICENCE. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 7 (Rationale of Judicial Evidence Part 2) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 7.
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The licence given to mendacity being one of the most efficient articles in the list of jurisprudential devices, it is particularly necessary to be clear and distinct in the explanation of it.
Under the fee-gathering system, falsehood, wilful falsehood, was, by the judge, and the rest of the partnership, found at a very early period to be on many occasions a necessary, and on all occasions a useful, instrument, in their hands, to aid them in their pursuit of the ends of judicature. It accordingly became a capital and constant object with them to neglect no means or opportunity of applying it to this its use.
In whatsoever instances falsehood, being known and wilful, appears to have been habitually uttered either by the judge himself, or by others with his allowance or under his compulsion, to the advancement of the ends of judicature, as opposed to the ends of justice,—what is so uttered and done, may be said to be done under the mendacity-licence.
The mendacity-licence has been in some instances acted under—in some instances assumed: acted under, where the falsehood uttered has been uttered by one of the parties; that is (under the exclusion put upon the parties) by his professional assistants, acting as such: assumed, where the person by whom it has been uttered has been the judge himself, or any of his official instruments and subordinates.
The case where it has been assumed, is the case of fiction—legal fiction: it will be spoken to under that head.
In the case where the licence has been acted under, it has been acted under either by choice, or by compulsion—compulsion imposed by the judge. In the former case, the licence is a simple licence, created by permission: in the other case, to the simple permission has been superadded a command: a virtual one at least, punishment applied to produce the effect of a command.
In the present chapter, our concern is with the falsehoods which are simply permitted.
When, in regard to a practice of any kind, which on most occasions or to most persons stands prohibited, the intention is, that on certain particular occasions or by some particular persons it shall be practised if they please,—there is no other mode than the taking off, in those particular instances, the punishment, by which, in the other instances, the prohibition is created, or enforced: unless, over and above such forbearance or exception, a declaration were issued, expressly permitting and authorizing the practice in the cases to which the permission was meant to extend itself; an act which, in the case here in question, would be as indecorous, not to say perilous, as it would be needless.
For securing truth, veracity, correctness, and completeness, in testimony (when to produce these effects has really been the wish and endeavour of men in the character of legislators or judges,) the expedient employed has been punishment in some shape or other, attaching upon each violation of that important duty.
Punishment, in whatsoever way, attached to the breach of this duty, being a known, and obvious, and obviously and confessedly necessary, means of providing for the observance of it, where the intention has been that it should be observed,—wheresoever this necessary means has been forborne to be employed, a presumption not far short of certainty has been afforded that the forbearance has been intentional, having for its object to promote the utterance of the falsehood, by operating as a licence. When it appears that, for a course of ages, personal advantage has been continually reaped from this forbearance by those by whom it has been practised, this presumption is converted into a certainty, or what is little short of it.
By mendacity on the part of an extraneous witness, nothing was to be gained by the man of law. On the other hand, by the detection and supposed prevention of mendacity in that quarter, something was to be gained; viz. the reputation of discernment, and of a laudable zeal for justice. Accordingly, by virtue of a general rule, extraneous witnesses were to be subjected to examination—made to give answers to interrogatories—and, by way of a security for the truth of such answers, the sanction of an oath was called in, and punishment annexed to the breach of it. By the intervention of an oath promising veracity, mendacity committed in breach of that promise was thus converted into perjury—testimonial perjury; and, to the offence thus denominated, a lot of punishment, such as was deemed competent, was annexed.
The case of the parties was in this respect widely different. By mendacity in this quarter, a great deal was to be gained. Care accordingly was taken that the check applied to such practice in the other case should not extend to this. By receiving mendacious statements as grounds for inquiry, inquiries in abundance would thus be instituted—inquiries which, had the mendacious statements been prevented, or the falsehood of them detected at the outset, would not have had existence. Groundless demands on one hand, groundless defences on the another, were thus invited and admitted without stint.*
In the present case, however, for rendering the licence complete and effectual, the mere suspension or abolition of factitious punishment, applied professedly for that purpose, and under the name of punishment, would not have been sufficient. Had the natural system of procedure, and in particular that feature of it which consists in the meeting of the parties at the outset in the presence of the judge, been adhered to, the natural punishment attaching, in the shape of present shame, upon convicted or suspected mendacity, would in no inconsiderable degree have operated with the effect, and supplied the place, of all factitious punishment. The clearing the fee-gathering or technical system of so powerful an obstacle to its success as that initial meeting, was therefore a necessary preliminary to the establishment of the mendacity-licence, over and above its other uses.
From the earliest ages of political society, wilful falsehood, on the part of an individual speaking in the character of a witness for the information of a judge, had met with powerful checks. The utterance of the testimony being accompanied with the ceremony of an oath, the falsehood took the name of perjury, and was punished by the gods: having this mark set upon it, it came to be regarded with horror at least, if not always pursued by punishment, among men. If a statement thus stained, and sooner or later seen to be stained, by falsehood, being exhibited by the plaintiff, were seen to be in danger of experiencing this treatment,—a plaintiff who to his own knowledge had no merits, and whose prospects of success depended on the weariness, or poverty, or absence of the defendant, the mendacity of hired or dependent witnesses, or the imbecility or improbity of the judge, might shrink from the attempt; and so, vice versâ, in the case of a dishonest defendant. To encourage enterprise on the one side, perseverance on either, what was to be done? A sham distinction was to be made. To exhibit false testimony, the ceremony of an oath having been employed to insure the verity of it, would indeed be perjury. But what a plaintiff says, what a defendant says, is not testimony, but allegation. Not being testimony, the sanction of an oath will not with propriety attach upon it: the sanction of an oath not attaching upon it, be it ever so false, it is not perjury. But, not being perjury, it is not anything that has a name. No longer the crime of a man—of an impious and wicked man,—it is little more than the failing, the venial failing, of a child. Refusing to everything that comes either from the plaintiff or from the defendant the name of testimony, and by that means, in case of falsity, the name and tremendous consequences of perjury—withdrawing it, in a word, by that means, altogether out of the reach of punishment, we grant a licence, we annex rewards to mendacity, to what otherwise would be perjury, in so far as it can contribute to the continuance or the number of those contentions by which it thrives.
Divested of that security for veracity, were the discourse of a plaintiff or a defendant recognised as divested of all title to credit, and (as such) unfit to be acted upon in any way, and by anybody, the invention would not answer its purpose. But here comes in another distinction to our aid. Credit is not due to allegation for the purpose of giving termination to the cause: credit, the fullest and most unreserved and unquestionable credit, is due to it, and shall be given to it by us, for the purpose of giving continuance and commencement to a cause. Were we to see, and to be known to see, that what the plaintiff, at the very outset of his demand, says in support of it, is void of truth, there could be no pretence for calling upon the defendant to make answer to it. At so premature a period, therefore, let it be our care to know nothing about the matter; to rest in convenient and impartial equipoise; to take it for true and not true: for not true, to the purpose of giving, in favour of the plaintiff, a termination to the cause; for true, to the purpose of calling upon the defendant for an answer to it: which in the same manner shall be both true and not true; and so, by the blessing of Providence, giving continuance to the cause.
Comparing allegation with testimony, it is curious enough to observe the difference between appearance and reality—between what is said to take place, and what actually does take place. According to the language, and perhaps the conception of the man of law, nothing is done by the law without proof; mere allegation without proof goes for nothing. In reality, allegation without proof has more effect, is much surer of its effect, than proof itself—than proof of the nature of testimony, than proof by deposition, for example. Of what is ranked under the names of proof, deposition, testimony, the effect depends altogether upon its being believed: disbelieved, it has not any, upon the conduct of the judge, or the fate of the adversary. Of what is delivered in character of allegation, mere allegation, the effect is exactly the same whether it be believed or no.
Where the suitor and his professional assistants behold in the employment of such licence a means (especially if the only means) of pursuing their respective ends,—if, in their respective bosoms, the force of the improbity-restraining interests be not sufficient to restrain them from the pursuit of the ends in question by such means, their availing themselves of the licence is a result that follows of course.
Where (on whatever prospect of advantage) a man proposes to himself to prefer against another a demand, of the groundlessness of which in point of fact he himself is conscious; if, at the same time, according to the formularies in use on that occasion, it is necessary that on that occasion he should utter any assertions (general or special) which, the demand being groundless, fail in some respect or other of quadrating with the truth; in such case, falsehood in some shape or other is necessary, both to him and to his lawyer, in the pursuit of their respective ends: for, without the falsehood, the suit, by the supposition, could not be carried on: the client would therefore stand debarred from the advantage, whatever it be, which he looks for from the suit; and the man of law, from the profit attached to the sale of his assistance.
On this occasion it is not necessary to be particular in the delineation of the various shapes in which advantage from demands known to be altogether groundless may present itself, and be reaped. If the object demanded possess of itself a value, possession of that object will constitute the advantage: if the object demanded be even altogether destitute of value, still, under the technical system, it follows not by any means that the suit should not be provided with any substantial and intelligible advantage. Is the defendant in a state of comparative indigence? he may be ruined. Is he opulent? be he as opulent as Crœsus, he may at any rate be tormented.
So, if the professed object be the real object of the suit, and the value of it considerable to any amount, means are not wanting by which, without the shadow of a title, it may be possessed. If the defendant be at once rich and resolute, it may happen that nothing less than perjury may present an adequate prospect beforehand: but, if his condition be that of relative indigence (that is, if it surpass not the condition of nine-tenths of the people,) perjury may be a mere waste of wickedness and danger: the mere expenses of defence, natural and factitious together, (especially with the help of a timid frame of mind.) may be sufficient to ensure success.*
Mendacity-licence, in what cases granted.
In certain cases, in regard to certain instruments and discourses, it suited the interests of the partnership that the liberty granted by the mendacity-licence should have place, that mendacity should go unpunished; in certain other cases, not. When it suited their interests that it should be more frequent, they encouraged it; when it suited their interests that it should be less frequent, they discouraged it.
The effect of the licence may be considered as produced in either of two ways:—1. The allowance general—the prohibition and punishment particular, and operating in the way of exception to the general rule; or 2. The prohibition and punishment general, and the allowance particular, operating in the way of exception to that general rule. It may be considered as constituting the exception, or it may be considered as constituting the rule.
Mendacity, to all who have not a special interest in the promoting of that vice, is a thing so odious,—and, to every eye but a lawyer’s, so intimately connected with injustice, so hostile to justice,—that, in regard to every sort of discourse bearing relation to justice, the obvious course seems to be, to regard the prohibition of mendacity as constituting the general rule, the allowance as an exception—a rare, unheeded, unintended, and even unwelcome and lamented, exception. Yet, in comparison with the cases in which prohibition and punishment bear upon it, so great is the extent of the cases in which neither punishment nor prohibition, nor anything but encouragement (sometimes by simple permission added to the natural advantage, sometimes even by positive compulsion) bears upon it;—in a word, the exception (if it be one) is so extensive; that a man may well be at a loss on which side to place the rule.
On this occasion, as on every other, the problem was (as we have seen) how to produce most profit, with least infringement upon ease.
Exaction of heavy fees (heavy, with relation to the general pecuniary ability in those early times, when money as well as money’s worth was so scarce,) had the double effect of increasing profit and diminishing labour at the same time: increasing profit, in proportion to the number of those who, being able to pay the price, take upon themselves the expensive character of suitors; diminishing labour, in proportion to the multitude of the vulgar herd, the bulk of the people, who, unable to pay the price, gave up their chance for justice.
The quantum of profit, which on each occasion it might be worth while to accept from each suitor in the shape of fees, being thus settled—the price of the commodity being thus fixed,—the greater the number of those who put in for their chance for it, the better.
The first idea seems to have been, that, the more universal the allowance to mendacity was, the better. The first arrangement accordingly appears to have been that of an universal mendacity-licence to all mankind: no distinction as yet in that respect between parties and extraneous witnesses. The proof is, that afterwards,—when, in the case of an extraneous witness, mendacity came to be punished,—punished it then was, as still it continues to be, no otherwise than through the medium of the ceremony of an oath: no oath, no perjury—no perjury, no punishment for mendacity:—and, in the time of Edward I.* at any rate, and probably for centuries later, no such ceremony as that now in use under the name of an oath was employed—employed in the common-law courts, on any such occasion as that of receiving the vivâ voce testimony of an extraneous witness. At the same time, no want of mention of perjury; but the perjury then in question was the perjury of the juror, of the judge, of this or that other official person—of anybody but the witness.
This in the common-law courts. Meantime, the ecclesiastical courts were in vigour: and they, taking their law from papal Rome, (in which the profit, of which writing is so fruitful, had always been made the most of,) went on administering testimonial oaths, and punishing the breach of them under the name of perjury.
From this practice, compared with the common-law practice, the idea of a sort of composition or middle course seems to have been deduced: a happy temperament, increasing the number of bonâ fide demands and defences, without diminishing the number of malâ fide ones.
If we administer an oath to the parties, and thus, in case of mendacity on their part, punish them as for perjury, the truth will come out at the first meeting, and there will be an end of the cause: no lying excuses, no perpetual renovation of delays and fees by alternate absentations.† Let us, therefore, confine the oath, with its eventual punishment and present discouragement of mendacity, to extraneous witnesses. These need not, shall not, come upon the stage, till the fifth act: leaving the four first acts for the torment and pillage of the parties, whose averments, being open to the objection of interest, and being not upon oath, shall no longer, in the character of testimony, be listened to. Giving this new security for veracity, and thence for justice, we shall increase the honest part of our custom, without prejudice to the dishonest part; we shall increase the number of our bonâ fide customers, whose expectation of success being founded in truth, they will, in the security thus given for truth, behold an increased probability in their favour. Continuing to allow to the averments (true or false) on the plaintiff’s side, the effect of giving commencement to the suit, in confidence of the inability of the defendant to go on with it,—and, on the defendant’s side, that of giving continuance to it, for the purpose of staving off the evil day, or in confidence of the plaintiff’s inability to go on with it,—we shall experience no diminution, no equivalent diminution at least, in the number of our malâ fide customers.‡
Thus stood the matter in the common-law courts. Meantime, the equity courts, a new class of courts peculiar to England, hit upon a further refinement, a yet more extended application of the oath: a further increase to the number of bonâ fide litigants on the plaintiff’s side, and still without any equivalent diminution in the number of malâ fide litigants on either side.
The practice of writing had, by this time, received considerable extension: writing, the fruitful mother of fees, had become familiar to the man of law.
Let us give to the bonâ fide plaintiff (said they) the advantage of extracting from his adversary, under the sanction of an oath, his unwilling testimony—on condition that the examination shall not be performed vivâ voce in our presence (in which case, the cause, being ended almost as soon as begun, would afford no fees,) but in writing, and that on both sides: reserving to the malâ fide plaintiff, whose object is to oppress his less opulent adversary by the weight of vexation and expense, the faculty of telling a story, which, as often as he has no sufficient truth to ground it upon, may be groundless, but which, on the supposition of its being true, might afford a just cause for the commencement of the suit. Let the plaintiff, by his bill, tell his story (the longer the better,) and put his questions (the more of them the better,) in writing, and not upon oath: the defendant, by his answer, gives his responses, and, in giving them, tells his story (the longer the better) also in writing, but under the sanction of an oath.
All this while, it is only from one of the parties that there will be any chance of truth: as between those two, the truth may be half told, but it will be no more than half told. So much the better: if it be the misfortune of the defendant to stand in need of the testimony of the plaintiff, this gives the benefit of a cross cause, in which the parties exchange characters: the defendant of to-day, the plaintiff of to-morrow: another bill, another answer, another cause.
Had the examination been performed vivâ voce, by the one party on the other, in the presence of the judge, each being as much present as the other—both causes, original cause and cross cause, would have been dispatched at once: both of them would have been as good as lost to us.
Lawyer.—Mighty fine all this, in good truth! But what is it you have been about all this while? You have been confounding two quite different things, assertion and proof, pleading and evidence: and on this confusion rests your argument. Evidence is worth nothing without oath: accordingly it is never received but upon oath. But pleading is not evidence: what need therefore of its being upon oath?
Non-Lawyer.—Pardon me: nothing has been confounded that the nature of things has separated. Proof, that sort of proof which consists of testimony, what is it but assertion? and assertion, if it be pertinent, and sufficiently particular as to time, place, and so forth (the assertor speaking of the fact as being the subject of his belief, or having come within his own knowledge,)—assertion, come from whence it will, what is there in it that should prevent it from being received as evidence?
No, sir: it is not by the nature of things, but by your partnership, and for the purposes above stated, that the distinction has been made. Call it evidence in one case, call it pleading in another, it is still neither more nor less than assertion in both cases. Whence then sprung the distinction? From the views which led the partnership to grant or continue the mendacity-licence in one case, to withhold it in the other. Where the licence was to be granted, assertion became pleading: where the licence was to be withholden, assertion was evidence.
Lawyer.—And so, sir, you have persuaded yourself, or wish to persuade others, that what you are pleased to call the mendacity-licence extends to every assertion that belongs to the head of pleading,—to every assertion that does not belong to the head of evidence? Know, sir, then, that in a number of cases, in equity, as well as at common law—in short, wherever it has been thought proper (which is as much as to say wherever it is proper)—the sanction of an oath has been required to be attached, and is constantly attached, to assertions made by a party: made by a plaintiff as such, and coming on in the course of the pleadings, and not of evidence. There is the affidavit annexed to the bill of discovery, there is—
Non-Lawyer.—Yes, sir, there they are indeed: there they are in the books, you need not trouble yourself. But do you think the credit of your partnership will be much served by these exceptions, these thinly scattered exceptions? Verily, verily, they do nothing better for you than (to use your own expression) the fixing you with notice. By what reasons will you justify yourselves in withholding the licence in these few cases? By none, though you were to look for them till doomsday, but such as condemn you for granting it in the rest: such whereby, in every case in which you have granted it, your conduct stands condemned.
It is not, then, but that the necessity there is of the same security for truth in the one case as in the other, is sufficiently understood among you, and has been over and over again brought to view. What you do, then, for the encouragement of falsehood, of that falsehood which is so profitable to you, you do with your eyes open: and whatsoever forgiveness you may ever hope for, it will not be on the ground of your not knowing what you do, that you can expect to obtain it.
In a word,—call it pleading, call it what you will,—in the whole course of the cause, from the writ to the execution, there is not one assertion made, there is not a scrap of paper or parchment scratched upon, to which the effect of evidence is not regularly attached. Take the writ: it is on the ground of the assertion contained in it (or on no ground at all,) that the defendant is compelled to appear, as you call it, that is, to employ an attorney: and so on, till the cause has run its course. Take the declaration:—it is on the ground of the assertions, true and false, contained in it, that the defendant is compelled either to put in his plea, and so on, through the several operations prescribed to be performed on his side of the cause, or, in failure of any of them, to lose his cause,—that is, to be put in as bad a condition as he could have been put in by any the most conclusive mass of evidence.
And now, sir, say, if it be your pleasure, say, if it can be of any use to you, that pleading is not evidence.
If, when thus applied, the word evidence be altogether insupportable to learned ears, imitate the admiring critic, who, speaking of Pope’s Pastorals, confessed they were not pastorals, but said they were something better: say that it is not evidence, but something more conclusive.
Carelessly as the account of the sins of the partnership is kept by the public mind; still, as the account swells, this or that device must every now and then be practised, for the purpose of rubbing them out, or covering them.
Flaming indignation, for example, kindled by a sham plea; and a miserable attorney, made into a scape-goat, immolated in great ceremony. A sham plea! as if, in the whole chaos of pleas there were a single plea that, under the mendacity-licence, in the mouth of any one who thought fit to employ it as such, might not equally be a sham one.
The plea, too, thus singled out for infamy, what is it? It is one of the least guilty ones: a lot of gibberish, by which the intended effect, delay, is produced, at the expense of a few words, and the profit upon those few words. Were it a hundred times the length, such as the arch-sacrificator has drawn a hundred times over with his own sacred hands,—a hundred times as long, and equally void of truth,—it would not be called a sham one.
If, in any instance, there be anything worse in a plea called a sham plea, than in a plea not put upon the sham list, it is this: viz. that (the sham plea so called being capable of being interposed between the declaration and the sham plea not so called, while those of the latter stamp cannot be thus added ad libitum) the lesser plague, though by itself the lesser, is so much superadded to the greater one. This supposition, is it often, is it ever verified? Inquire who list, that have curiosity and patience.
Of this grimace, what is the practical lesson—the learn we hence, that John Bull is to lay up in his mind? A preachment on the text, by which any abuse at pleasure is metamorphosed into a blessing; Corruptio optimi fil pessima. The system perfection, as far as anything human admits perfection; the system perfect, but man frail, and some men are attorneys. The rules admirable, but irregularities, violations of these rules now and then committed: everything good asscribed to the rules, everything bad to the violations.
To keep up the delusion of the people, and maintain in their bosoms the habit of ascribing to the arbiters of their fate that love of justice, the existence of which, in such a situation, is not in human nature,—it was necessary that, from time to time, the appearance of punishing iniquity should be kept up; and that here and there a delinquent, though a partner in the firm, should be sacrificed in ceremony on the altar of offended justice. But to take the victim from that class of lawyers from whom the judges themselves are taken, would stamp a mark of suspicion, at least, upon the judicial character itself. Matters are accordingly so ordered, that whatever mal-practice, recognised as such, takes place, shall be the act of the attorney; and whatever profit is to be derived from mendacity and iniquity, shall drop pure into the lap of the advocate, without danger or punishment, even in the shape of shame. The attorney is thus made to act the part of scape-goat, for the benefit of the advocate, and through him, of the judge.
What is the plain truth? That the system is rotten at the core: that the system is the cause of almost every iniquity practised, almost every suffering sustained: that whatever is done amiss by any of the partners in the firm, is to be ascribed, not to the individual, but to the partnership itself: that, when the attorney is wicked, it is for the same reason that his censor, or any one else, is wicked,—because the system makes him so: and that, as to the rules, the mischiefs of violation are as nothing, compared with the mischiefs of observance.
If there were any use in quarrelling with water for running downwards, or with sparks for flying upwards, against which of the two classes should men direct their reproaches on this score? Against the class which acts under this system? or against the class that sits above it and upholds it? Against the class which knows not what it is, to find itself within the bar of either house? or the class which divides its time between the woolsack and the bench? Against the class against which the eye of constant suspicion points itself? or against a class to whose words all ears are attention, all hands obsequious?
To estimate the true temperature, if it were worth while, of the indignation excited by a sham plea, inquire whether the judge by whom you see it manifested, is not of the number of those who know their way to parliament. If yes, observe, that, to bar it out, with all its fellows, there needs nothing but an oath; that familiar, too familiar, instrument, by which so many of its fellows have been barred out already. Think of this: then draw your inference.
Uses of the mendacity-licence to Judge and Co. without the help of writing.
In the use made of the mendacity-licence, two distinguishable applications may be noted: one, independent of the art of writing; the other, grounded on the practice of that art, and proportioned to the abuse of it. Not but that, in the cases where, even without the help of that art, the licence might, with reference to the partnership, have had its use, that use has, from the abuse made of the art, received prodigious increase.
The use that is not absolutely and completely dependent on the practice of writing, is that which consists in the encouragement and consequent birth given to malâ fide litigation—litigation which, on the part of the malâ fide litigant, is accompanied with the consciousness of the injustice of his cause.
In litigation, the mala fides may have place either on the side of the plaintiff, or on the side of the defendant.
Wherever, to subject an adversary to the vexation and expense of a course of litigation, nothing more is requisite than a bare assertion, unaccompanied with any security for the truth of it,—any man, at the mere expense of a lie, has it in his power to subject any other at pleasure to whatsoever vexation and expense it may be in his power to introduce into that distressful state; and that without so much as a shadow of right, as easily and safely as upon the clearest title.
The plaintiff, it is true, cannot engage the defendant in that course, without first plunging into it himself; but the quantum of vexation and expense attached to it on one side, compared with what is attached to it on the other, is susceptible of all manner of proportion: and a man will not engage in it in the character of plaintiff, but in those cases in which, comparing the probable amount of his own vexation and expense with that of the proposed defendant, he sees in it a prospect of clear advantage to himself upon the whole: and to the possible number of these cases there is no limit.
Require of him an assertion, of one sort or another, according as the particular facts on which he grounds his demand are or are not represented by him as having fallen under his own immediate cognizance; exacting from him, at the same time, for the verity, or at least for the veracity, of such his assertions, such security as in other cases (for example, in the case of an extraneous witness) is regarded as sufficient; you thus nip in the bud all malâ fide demands: the comparatively few excepted, in which, for the chance of the coveted profit of successful mendacity, a man will be content to subject himself to the risk.
In like manner: if, at the like small expense, any man at whose charge a burdensome service of any kind (payment of a debt for example) is demanded, has it in his power to oppose a temporary bar at any rate, with or without the probability of a perpetual bar, to the burden sought to be imposed upon him (to the burden, for example, of paying such debt;) the licence so given to dishonesty is (for the time for which it holds good) complete and universal: as truly so as any other licence can be rendered so by law.
Exact, on the contrary, from the defendant’s side, an assertion correspondent to that just spoken of in regard to the plaintiff’s side, together with the like security for veracity,—you make, in the number of malâ fide defences, a reduction proportionable to that made in the number of malâ fide demands in the other case.
All this is at the same time so perfectly incontestable and so extremely obvious, that it may be pronounced morally impossible that those judges, who, at an early period of jurisprudential history, exempted parties from the obligation imposed, in respect of veracity, upon extraneous witnesses, could have acted with any other view than that of giving the encouragement, the immense and too efficient encouragement, which has been received and acted upon by profitable injustice.
There is no practice so mischievous, to the flagitiousness of which, by habit, mankind in general, and especially those who profit by it, have not been rendered insensible. What they do not see (because, by turning aside from it, they take care not to see it) is the mischievousness of the practice: what they do see is the practice itself; that custom, which constitutes the only immediate standard of right and wrong in the eyes of the generality of mankind.
Without the use, and antecedently to the general practice, of the art of writing, an advantage might, for the purposes of injustice, be made of the mendacity-licence, on both sides of the cause.
On the plaintiff’s side (for instance,) where his own abode was in the neighbourhood of the court, while the defendant’s abode was at a great and inconvenient distance.
On the defendant’s side, the advantage had beyond comparison a much greater, indeed an infinite latitude. Under the licence, the utmost that a malâ fide plaintiff could do in the way of injustice and oppression, was to subject him, in the article of journeys and demurrage, to a proportionable burden, in the shape of vexation and expense: whereas, in the character of defendant, a man who had by injustice possessed himself of property to any amount, might, with the benefit of the mendacity-licence, and with the assistance of the judges by whom it was granted, maintain himself in possession of such property for any length of time.
Accordingly, in the practice designated by the name of fourcher par essoign—decision staved off by two defendants coming each day with a sham excuse in his mouth, and taking care never to appear both on the same day,—we see a contrivance suited in its grossness to the grossness of the age; but by which, even without any assistance from the abuse of writing, judges had established themselves in the habit of keeping an open shop for the sale of any man’s property to any other man who would pay their price for it.
Essoign was the name given to an excuse for not appearing. Sham excuses, known to be such, were regularly admitted by the judges. To any man who, in reading Glanville, Hingham magna, and Hingham parva, but especially the two Hinghams, has the courage to open his eyes, this will be clearly visible. In the character of joint defendants, suppose the usurper of your land and a man of straw, whom, in the character of former proprietor, he called in to warranty. Two of these sham excuse-makers, joining together, made an engine, called, in the technology of that day, fork (fourche,) by the help of which a man who had got possession of your land was admitted to stave you off for any length of time. Fourcher par essoign was the name given to the operation. When A appeared, B kept out of the way: when B appeared, A did him the same good office. If thus much could be done by a fork with two prongs, judge what might have been done with a fork of two or three dozen, or two or three score of prongs, such as they have now in equity.
Is it possible to imagine, that, if the judges themselves had not been in the plot, they could have suffered themselves to be deceived, and justice paralyzed, by so gross an artifice?
This was when jurisprudence was raw and young: so that, when once the parties were met together in the presence of the judge, the cause was at an end, pretences not having been invented for delaying any longer to do justice.
When, by one such artifice or another, generation after generation had been squeezed and kept in torture, so that the grievance was grown past all bearing, the legislature would now and then interpose, and say that such things should be done no longer:* whereupon things went on nearly as they did before; the worst that could happen to the contriver of iniquity, being the trouble of putting her into new clothes.
Drive nature off (says the poet) with a pitchfork, she will run back upon you. Justice, under the management of these judges, was not thus obstinate. It required an act of Parliament† to say that there should be no more such fourching.‡
To understand the structure of a watch, each particular wheel must be separately viewed, and its office separately considered. To obtain a clear and satisfactory conception of the system of technical procedure, it was accordingly necessary that each separate device should be separately brought to view, and the advantage, to the production of which it was of itself and by itself competent, separately displayed.
Between the mendacity-licence, and the abuse of writing in the shape of ready written pleading, the combination was most intimate. Closer than mechanical combination, it required a sort of chemical process to dissolve it, and present the elements in a separate state.
Thus much as to what could be done, and has been done, by the mendacity-licence alone. The great improvement given to the virtue of this element by the addition of the other, will be seen in the following chapter.
[* ]Plaidoyers de Linguet, vii. 347. Memoirepour de Gouy. “Il faut se rappeler avec quel mépris. . . . les tribunaux rejetoient ces articulations vagues, dénuécs de probabilité, de circonstances, et qu’on ne hasarde si librement que parce que les loix n’y attachent d’autre peine que le défaut de succès.”
[* ]Of this licence to mendacity, and, through mendacity, to oppression—to the most flagitious of all oppressions, that which is inflicted by the hand of law,—it is almost superfluous to say that it is no secret to those by whom and to whose profit it is suffered to continue. It has neither been always unfelt, nor always unopposed, by the legislature.
[* ]Mirror, Ch. iv. § 19.—Ed.
[† ]Vide infra, p. 269.
[‡ ]Of an arrangement which, for the purpose of securing the commencement and continuance of a suit, admits the testimony of a man without any security for his veracity, while, for the purpose of grounding the decision which is to give termination to the same suit, it refuses to receive the testimony of the same person under any security or in any shape, the inconsistency and iniquity is as flagrant as the motive is obvious. In one case, going on with the suit, after it has been commenced by the averment of the plaintiff, will cost the defendant, say £50. To the purpose of subjecting the defendant to this burden, the bare assertion of the plaintiff, without oath, without fear of punishment for perjury, in terms the most vague that can be devised, and without so much as his signature to fix it upon him, is not only admitted, but made conclusive: no evidence on the other side by which this effect can be stopped. In another case, or in the same case, the matter in dispute not amounting to 5s.,—to the purpose of giving termination to the suit, by proof of the matter of fact in question, the assertion of the same person under oath, under fear of punishment for perjury, in the most pointed and explicit terms, under the security afforded by cross-examination, is not admitted on any terms: neither amidst other evidence on the same side, nor subject to opposition liable to be given to it by evidence on the other side. Inconsistency enough to arrest the boldest hand, were the device to be grafted alone, upon a system directed to the ends of justice. But, in comparison with the other enormities with which the system swarms, this particular one is so inconsiderable as to have been generally passed by without notice. Gullets exercised with the swallowing of camels, do not stop to strain at gnats.
[* ]Vide supra, the case of manufactured out-lawries, p. 254.
[† ]See Note to the title “Warranty,” in Butler’s edition of Co. Lit.—Ed.
[‡ ]In reading of the remedies applied from time to time by Parliament, in those early days, to the abuses of judicature, remedies never curing, oftentimes aggravating, the disease, it is seldom possible, at this time of day, to discern, or even to conjecture, how far the men of law acted in the character of open oppugners, how far in that of authors or supporters, of the so-called remedy. In the application of it, iniquity under the name of jurisprudence having been swelled into a science, it was impossible that, among the efficient members of the government, the non-lawyers should have been able to stir a step, to pen a clause, without calling in, in the person of a colleague or subordinate, the assistance of the lawyers. The lawyer (according as the understanding of the non-lawyers he had to deal with admitted, and his own dexterity enabled him) would of course do what depended upon him towards diminishing the efficacy of the medicine, or converting it into a poison. In this state of the human understanding on both sides, it is evident that, in the long run, taking the whole of the course together, it was impossible for the non-lawyer, the real friend and patron of the people in the character of suitors, to avoid being jockeyed by their sham friend and implacable enemy, the lawyer.