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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 XXVIII.

REMEDIES SUGGESTED FOR THE ABOVE EVILS.

After so much as has been said of the disease, the purpose of the discussion would be in danger of being misconceived, discontent instead of reform might be taken for the ultimate object—misanthropy instead of philanthropy for the source, if nothing were said of remedies.

But, though the causes of the mischief appertain to the purpose of the present work, because without them no completely satisfactory account could have been given of the origin and probable cause of the system of exclusionary rules,—the remedies, any further than as concerns the abolition of the coercive rules, and the substitution of a body of simple instructions in their stead, are not, by any appropriate tie, connected with the subject of this work. An indication as brief and general as possible is therefore the utmost that the reader will probably look for, or be pleased to meet with, in this place.

I. Removal of the external cause of the disease, the root of the corruption: substitution of salaries to fees, throughout the whole nest of judicial offices.

II. Substitution of the natural system to the technical, throughout the whole field of procedure.

III. Transformation (gradual, but at length complete) of the substantive branch of the law, from its present form of jurisprudential law, or jurisprudential patched with statutory, into pure statutory.

IV. Arrangements to be taken for annexing to offices already in existence, or to a new office or set of offices to be instituted for the purpose, an interest in the preservation and amelioration of the fabric of the laws: a system of registration calculated for the express purpose of indicating the defects of the law (if any,) in proportion as experience gives them birth: and an officer or set of officers, whose function it shall be, to watch the appearance of all such effects, to take note of them, to present them from time to time to the notice of the legislator, together with an indication of the arrangements which present themselves as best calculated to answer the purpose of a remedy.

There is a time for all things: there may be a time even for justice. Fashions change: who knows, but, one day, even justice may be in fashion? Things little less strange have sometimes happened.

In the administration of what is called justice, the ends hitherto pursued have been (it has been seen) not the ends of justice, but ends opposite to those ends.

We have seen the chains in which the wisdom and virtue, as well as the power of the nation, have for so many ages been held in thraldom: chains forged by absurdity in the cavern of depredation. Time may come when men shall be weary of these chains.

Let us suppose (though it were only in the way of reverie,) let us suppose as in a dream, to some perhaps even pleasurable, and not the less so for being fantastic;—let us suppose a time—if not in the present, in some future age, the year 2440, for example—in which, in a sort of mad fit, or by way of frolic, a resolution were taken, in one or other or both of the two proper places, to frame a system of procedure directed to the ends of justice. To gratify this odd fancy, what would be the one thing needful? It is comprised in one word—consistency. Yes: to frame a system of procedure as perfect and salubrious, as that with which the people at present are afflicted is depraved and pestiferous, the legislature needs only to tread in its own steps.

The exemplifications of the principal arrangements taken at different times by the English legislature for clipping the wings of the fee-collecting system, and substituting the pursuit of the ends of justice to that of the ends of judicature, may be comprised under the following heads, viz.—

1. Institution of courts in which the natural system of procedure has been preserved or restored.

2. Partial abolition of special pleading.

3. Abolition of fees, in judicial as well as other departments.

I. Courts of natural procedure preserved or instituted.

Let us begin with bringing under review the whole list of these courts together: they appear to be as follows:—

1. Courts martial: including the naval as well as the land branch of the military service: the mode of procedure not presenting, in the point of view in question, any material difference. General and regimental is a distinction, which, in the land branch, draws with it a difference respecting the constitution of the court, and the sort of causes cognizable, but none respecting the course of procedure.

2. Courts of inquiry. These, in the military service, serve for a sort of preliminary examination: an inquiry, having for its object the question whether the person who is the subject of it shall be placed in a situation so full of vexation in various shapes as that of a defendant in a criminal cause. Mode of procedure, to the present purpose, much the same.

In the above instances, but more particularly the first, the natural modes of procedure may be considered to be preserved rather than restored. Why? Because, in these instances, a strict regard to the ends of justice was so indispensable, that, under the technical system, the country could at no time have been preserved from utter ruin for six weeks.

3. Courts composed of justices of the peace, acting (whether singly or in companies) out of general sessions: the quarterly court of general sessions being courts of technical procedure.

4. Courts of request, more commonly called courts of conscience: one for each of the several towns or districts to which, on their respective application, it has been granted, by so many acts of parliament, with a jurisdiction marked out by each respective act.*

5. Courts composed of arbitrators chosen by the parties: with powers derived from a special article of statute law.

In whatsoever other respects the course of procedure observed in these several courts differs, in one of them compared with another (and the difference is not great,) it agrees in being unshackled by those rules with which it is lettered in the technical courts.

We have seen those devices and engines of fraud and injustice, which, having been invented and carried into effect by the technical system, constitute so many characteristics of that system. To none of these natural courts does the application of them extend.

In none of these courts of natural procedure is there anything to prevent them from directing their operations to the ends of justice. In no instance do they stand exposed to the influence of that sinister interest, by which, under the technical system, judges have been, in so deplorable a degree, diverted from the ends of justice to the factitious ends of judicature. In none of them is there any want of those powers which are necessary to enable the judge to pursue, with effect, the ends of justice; or if there be, and if the deficiency were supplied, as it might be and ought to be, the effect of the supply would only be to bestow upon them what is necessary to render them perfect in the character of courts of natural procedure; it would not bring them any nearer to the nature of the courts of technical procedure.

What distinction there is, is confined to evidence. In the courts of conscience and arbitration courts alone, is the practice in regard to evidence free from those exclusions, of which, under the technical system, it is composed; those exclusions, the irrationality of which has been announced, and will be brought to view in detail as we advance.†

On every occasion, they afford the time requisite for making, on both sides, the necessary ground for right decision; and in particular, on both sides, for receiving whatever stock of material evidence the cause happens to supply. On no occasion do they consume more than that requisite length of time. Much less do they, on any occasion, so work up and improve delay, as to render it a cause of necessary misdecision and injustice, by the deperition of the matter of satisfaction, or of a source of evidence.

On no occasion do they add to the unavoidable load of expense any mass of factitious expense, with or without design, either for the profit of the man of law, or the ease of the man of finance.

On no occasion do they add to that mass of vexation which, in the course of a suit at law, in one shape or other, is liable unavoidably to attach itself upon persons of different descriptions, any ulterior and factitious mass, the fruit of the negligence or the sinister policy of the legislator or the judge.

What, in a word, are the characteristics of the technical system of procedure? Exactly so many modifications of abuse. The practice of the courts of technical procedure is throughout infected with, or rather composed of, all of them: from all of them the practice of the courts of natural procedure is free.

The above observations are mere specifications of detail, to point the attention of the reader—to afford a security for the correctness of the general position in which they are included—and to manifest the impotence of malâ fide adversaries. By way of recapitulation, let us repeat once more the general positions in which they are comprised. The practice of the courts of technical procedure, being directed, under the impulse of sinister interest, to ends opposite to the ends of justice, is, throughout its whole texture, a compound of abuse: the practice of the courts of natural procedure, having nothing to turn it aside from the ends of justice, and being uniformly directed to those ends, is pure from all such abuse.

The countenance shown to the two systems, is the natural and necessary result of their respective aspects with relation to the interest of the man of law. Of the inexhaustible mass of eulogy with which the practice of the courts of technical procedure is so universally and indefatigably bedaubed, mention has been made already. When you can find nothing evil to say of your adversary, say nothing of him: this policy is no secret to the dullest mind. Of the courts of natural procedure and their practice, what do we hear said by the lawyers, or by anybody? Exactly nothing: everywhere a dead and universal silence. What can be more instructive, what more pregnant with confession, than this silence? By lawyers, nothing; for reasons too obvious to need or to bear repeating: by non-lawyers, almost as little; because so successful have been the labours of the man of law, that non-lawyers feel the risk, or rather the impossibility, of ever opening their lips on the subject, but in the way of a chorus echoing the eulogies of their learned leaders.

Should there be here and there an individual who, moved by the principles of genuine philanthropy and honest love of justice, should be desirous of satisfying himself by a convincing test in what degree the popular creed upon this subject is the result of prejudice nursed by sinister interest, and in what degree (if any) the expression of truth,—a short experiment will be found not unconducive to his purpose. Taking any of those institutions, the establishment of which has been among the devices of the technical system, as above exemplified,—let him apply it, in idea, to the practice of any of the courts of natural procedure, and ask himself in what respect any of the ends of justice will be served by it. The result may already be anticipated. Attached to the courts which gave it birth, the abuse is protected from censure (because protected from scrutiny) by the prejudices, the solemn plausibilities, the ever-thickening cloud of incense, the flowing vestments, the ermine borders, the masses of false hair—just emblems of the falsehood poured out, as from a perennial spring, from the receptacles which it envelopes. Transplant it from that its native soil—transfer it, in idea, to any of the courts of natural procedure (courts of which the practice has nothing to recommend it to the man of law, nor anything to the non-lawyer but its subserviency to the ends of justice,)—it has no such defence to protect it from the eye of scrutiny: all illusions vanish: the abuse presents itself to every eye in its native colours.

Does it happen to you, for example, to be a member of the unlearned class of judges, serving your country in the character of a justice of the peace? Take up in idea (but, remember, in idea only,) take up, in the character of instruments of justice, those devices, which, under the character of instruments of fraud and extortion, have been above enumerated as so many tools manufactured and habitually worked with by the superior and exclusively learned hands of lawyers. Hearing refused to parties. Tribunals put out of reach. Sittings separated by fixed and long-protracted intervals. Mechanical judicature. Pleadings in writing, at successive and distant intervals, spun out under a licence for selling lies. Nullification, destruction of just claims on grounds void of all relation to the merits: jargon without end: fiction without shame. Deck your proceedings with these flowers,—all or any of them,—and observe the consequence.

In the practice of courts military of all sorts, land and naval, general and regimental, courts martial and courts of inquiry, the natural course of procedure has ever been preserved: and (as already observed) for a very simple reason. At no time, in that line of judicature, could human society and the practice of the technical courts have maintained a contemporary existence: pugnant, nec in unâ sede morantur.

So many times as, by act of parliament, jurisdiction has been given to justices of the peace out of general sessions, or the possibility of obtaining justice against unwilling debtors to an amount not exceeding forty shillings has been communicated to creditors by the establishment of a court of requests,—so many times have king, lords, and commons, joined in solemn proclamation to the following effect: The course of dealing pursued by learned judges is incapable of being employed with effect in the execution of our laws,—incapable of serving for the accomplishment of our predictions, for the fulfilment of our engagements,—incompatible, in a word, with the pursuit of the ends of justice.

In regard to natural procedure, and the courts in which it is in use, a supposition tacitly if not expressly assumed by lawyers is, that it is a sort of inferior, makeshift mode of administering justice (or something in lieu of justice,) employed through necessity, for the relief of those who cannot afford to go to the expense of justice according to the regular and proper (meaning the technical) mode: that the justice thus administered is a sort of inferior commodity, provided for the relief and accommodation of those who cannot come up to the price of the best sort; as neck-beef and sticking-pieces are provided by the butcher for those who cannot come up to the price of ribs and sirloins: that between good justice (i. e. justice as secure as possible from danger of misdecision,) between good justice on the one hand, and dilatory, expensive, and vexatious justice on the other, there exists a sort of natural and indissoluble connexion; between the best justice (i. e. justice secured in the highest degree against misdecision,) and prompt, cheap, and unvexatious justice, as natural and invincible an incompatibility and repugnance: that the more dilatory, the more expensive and more vexatious, your justice is, the more secure against misdecision it will be; that the less dilatory, the less expensive the less vexatious your justice is, the worse it is in that other respect; that, therefore, a sort of option is in every case to be made; and that people have to choose whether they will have their justice good and secure against misdecision, but dilatory expensive, and vexatious,—or to a certain degree prompt, cheap, and unvexatious, but in an equal degree exposed to the danger of misdecision, and in that respect liable to be bad.

As often as a court of natural procedure has been instituted (continues this hypothesis,) this option has been made.

In the case of the court of conscience, a cheap sort of justice has been provided, for poor and low people who cannot afford to have it good.

In the case of the extra-sessional justice-of-peace court, a sort of inferior justice is administered,—partly and in some cases for promptitude (because delays would be prejudicial to the interests of government, as trustee for the public at large:) partly and in other cases for cheapness; as in the case of the courts of conscience, for the accommodation of the poor and low people who cannot afford to go to the expense of the best sort.

Such is the hypothesis of interest and interest-begotten prejudice. What says the simple truth? Answer: Pretty exactly the reverse.

In complicated causes, different accidents are liable to arise, creating an indispensable demand for an extra portion of appropriate labour, of delay (i. e. of time, occupied or not occupied in such labour,) and thence of a proportionate extra quantity of vexation and expense.

These cases allowed for, and laid out of the account (and they are extraordinary cases—they compose the small minority of cases,) the repugnance and connexion are nearly the opposite to what, by the hypothesis, they are supposed to be: and, in a word, the degree of security against misdecision is in the inverse, more nearly than in the direct ratio of the quantity of delay, vexation, and expense.

In the regular technical courts, the quantity of delay, expense, and vexation, is greater—in a prodigious degree greater, than in the natural courts. This is a fact too notorious to be disputed, to be contested by any man, even by a lawyer.

But examine the system on the other ground—on that of security against misdecision,—you will find this security not increased, but diminished—diminished in a high degree, and in a variety of ways:—

1. By the exclusion put upon evidence—evidence in a variety of shapes, in all which (as will be seen* ) it ought to be admitted,—and in consequence of such exlusions, not merely danger but certainty of misdecision, or (what is equivalent) failure of justice: exclusion put upon the evidence of parties, and other indispensable or unexceptionable evidence.

2. By substitution of inferior and less trustworthy, to superior and more trustworthy evidence: inferior evidence admitted, while superior evidence, even from the same source, is excluded.

3. By deperition of evidence: the consequence, partly and sometimes of the delay, partly and at other times of the expense and vexation: the party not able, or not willing, to defray the expense of procuring the evidence; including the factitious part manufactured by the system of technical procedure.

4. By deperition or latency of the matter of wealth in the character of the matter of satisfaction, the consequence of the delay: the property of the defendant (or if in this respect incidentally become debtor, the plaintiff) dissipated, or conveyed out of the reach of justice.

5. By nullifications; and (in consequence of the delay resulting from them) deperition of evidence, or of the matter of satisfaction.

6. By mechanical judicature, as already explained.†

7. By non-production of evidence, or abandonment of just claim or just defence in other ways, through despair or incapacity of bearing the expense.

Man, be he where he will, will have his weaknesses. A court of natural procedure, any more than a court of technical procedure, will not be exempt from that common lot, by which every seat of power is doomed to become occasionally a fountain of injustice.

But, between a court of natural procedure and a court of technical procedure, there is this simple difference. In the court of natural procedure, injustice is matter of accident: in a court of technical procedure, injustice (as we have seen) in every shape is matter of necessity. In one of its shapes, expense (viz. such part of the expense to the suitor as becomes matter of profit to the partnership,) it was the end, the very direct and ultimate end, of the institution: in all its other shapes, delay, vexation, and misdecision, it has been, though not the ultimate, an intermediate end, as being a necessary means.

In a court of natural procedure, it is but too possible that occasional injustice should be done. In a court of technical procedure, it is not possible to avoid doing continual injustice: in the shape of needless expense, vexation, and delay, constantly, and without any exception; in the shape of misdecision, frequently. Checks being in both the same, in a court of natural procedure the practice of the worst judge that ever lived would be a blessing, in comparison with that of the best judge that ever lived, in a court of technical procedure.

In a word, how should it be otherwise, if that be true which every page of this inquiry has been presenting to view,—viz. that natural procedure has invariably had for its objects the ends of justice; technical, as invariably, ends always different from, mostly opposite to, the ends of justice?

I have spoken of checks. One of the pretences, if not the only pretence, employed by the technicalists in defence of their system, and the forms of which it is composed (meaning those which, under the name of devices, have here been stripped of their sheep’s clothing, and exposed to view,) is, that these forms are so many checks to arbitrary power in the hands of the judge.

But what, I trust, is by this time pretty apparent, is, that of these forms there is not one which, either in intention or in effect, has ever operated or can ever operate in that character: and that amongst them there are few but what, so far from being checks, were in design, and are in effect (far from being checks to arbitrary power,) subservient to it in the character of instruments.

Checks:—of everything, or almost everything, capable of operating in that character, or needful for that purpose, the indication may be comprised in three words—publicity, appeal, jury. Not one of these, surely, which is in the slightest degree incompatible with the natural system of procedure.

As far as concerns the organization of the existing courts of natural procedure, they are susceptible of great improvements: but in respect of the mode of procedure, two single features (viz. appearance of the parties before the judge, and vivâ voce examination of the parties, but especially the former) are enough to render them as much superior to the best of the regular courts, as the military tactics of European are to those of Asiatic powers. They afford no work for lawyers: the wonder is not great that they should not be to the taste of lawyers.*

II. Abolition of special pleading.

In every instance in which, by a clause in an act of parliament, a licence has been given to the defendant to plead the general issue, and give the special matter in evidence,—the delay and expense attached to special pleading has, by the literal import of the words, been dispensed with. But so notorious in every such instance has the mischief been that would ensue to the defendant, who, having justice on his side, should forbear to avail himself of this indulgence, that no attorney who has any regard to his own character (probably no attorney at all,) ever did venture to forbear giving his client the advantage of it. In practice, then, the dispensation has exactly had (what it was intended to have) the effect of a prohibition: the licence by which men were allowed not to have recourse to special pleading, has had the effect of a prohibition, inhibiting, pro tanto, a practice so repugnant to every end of justice.

Almost every act (to use the words of Ruffhead,) “so far as it relates to officers of justice, of customs and duties, &c., and those acting under them, and highway, turnpike, and paving acts,” give this authority, impose this virtual prohibition. Vide (continues he) the Statutes themselves.†

These instances amount already to several hundreds, perhaps to thousands.

In the greater part of them, the person to whom the indulgence is thus given is a sort of person to whom some special power has been given for some public purpose: but, though by far the greater number of cases are manifestly comprisable under this designation, others there may be that are not comprised in it.

Be this as it may: so many hundred times as the legislature has given this authority, so many hundred times has it recognised the practice of special pleading to be a nuisance: so many times as professional lawyers of the different classes (attorneys in the conduct of the defence, counsel in advising concerning the plan of the defence) have concurred in giving to their clients the benefit of this authority, so many times have they, by such conduct and deportment, subjoined their attestation to the same unquestionable and important truth.*

In each particular case, the recognition (it may be said) goes no further than that particular case. True: because in no one of these cases could it with anything like propriety have gone any further: because in no one of these cases did the statute, of which the clause in question made a part, belong to that too scanty class of statutes which have had for their declared object the amendment of the law (meaning that part of the law which concerns the course of procedure.)

But, in each such instance, wherefore was it that in that instance the practice of special pleading was thus abolished? For this reason, and no other,—viz. that in that instance the practice was seen to be repugnant to the ends of justice. Repugnant! but why in these particular instances? Answer: Exactly for the same reasons which render it equally so in every other instance that can be assigned.

If there be any difference,—if there be indeed a case such that, though repugnant in so many hundred other cases, it would in that case be subservient,—it rests with that man, if any such man there be, who, being willing, conceives himself able, to point out that case, and to bring to view the difference.

In such case, let him mark well the task he will have to perform; viz. to show that the points of fact in dispute in the cause will with more advantage upon the whole (regard being had to the several ends of justice, all of them taken together) be ascertained and settled by the chain of successive instruments of which the operation called special pleading is composed (the judge knowing as little of the matter as he cares,) than by the adjustment of the same points by the parties, together with such professional assistants as they may respectively think fit to have, at one and the same meeting, together with such subsequent ones (if any) as may happen to be necessary, in the presence and under the direction of the judge.

This is the point here in question. Subterfuges may be grounded on the particular sort of case in contemplation in these statutes; viz. the case where, by the allegation called pleading the general issue, the facts on which the merits of the cause depend may be sufficiently brought to view. Such are the subterfuges that, but for this notice, would naturally have been started: but, this notice being given, they are anticipated, and rendered unfit for use.

The converse thing is, that the complete extirpation of this nuisance would not be improvement but restoration: the abuse of language here in question having started up within time of memory;—no institutional book, or book of practice, that does not refer you to a time at which the pleadings were performed vivâ voce, occupying in many instances fewer minutes than at present they do months. In those days, had it not been for the presence of the professional manufacturers of quibbles (assistants, not, as at present, substitutes,) and perhaps the absence of extraneous witnesses, and the minutes taken of what passed,—the proceedings of the Common Pleas or King’s Bench would scarce have been distinguishable (in simplicity at least) from the present mode of proceeding in a court of conscience, or before a justice of the peace.†

III. Abolition of fees.*

In the early periods of political society in general, and of the British constitution in particular, fees, in the character of a retribution for services rendered to the public by individuals, were an indispensable resource. Mischiefs, inevitably attached to that mode of retribution, there were in abundance: but in these early periods none of the conditions requisite to the provision of a succedaneum were as yet in existence: neither the experience and wisdom necessary to indicate the existence of the demand for any such substitute, nor the degree of public opulence necessary for the supply of it.

For a long time past, this necessary degree of opulence has happily not been wanting; and, by the aid of the stock of experience that has so long been accumulating, the intellectual lights necessary to the application of that experience, as to the point in question, to its proper use, appear at length to have pretty generally illuminated the public mind.

In other departments of government, the sinister influence of this mode of retribution has been brought to light by competent authority: in theory the discovery has been made—in practice it has been profited by. Parliament has raised its amending hand, and in these departments retribution by fees has been abolished; retribution by salary has been substituted in its stead.

The precedent (or rather, in this case as in the two foregoing ones, the mass of precedents) is, upon the face of it, conclusive: at any rate to such a degree conclusive, that, if there be any person who, admitting the propriety of the substitution in these instances, is disposed to contest it in the one now before us, it lies upon him to point out the difference.

But it would be a conception very wide of the truth, were it supposed that the reason for the substitution were no stronger in this case than in those—that the malignity of the principle of corruption were no greater in the bosom of a presiding officer of justice, than in the bosom of an officer employed in the receipt, in the expenditure, or in any other branch of the public revenue.

But it is not to those other departments alone that the benefit of the principle of reformation has been extended: the judicial department itself has experienced its purifying influence.

In so populous a neighbourhood as that of the metropolis, the power attached to the office of justice of the peace had been converted, it was thought, into an instrument of trade: the multitude of the fees receivable in the course of a day, in a sort of court in which vacations are unknown, made up for the smallness of them taken singly. In the country at large, so moderate is the rate, so elevated for the most part the situation of the person invested with that office, it is not in the nature of things that the emoluments derivable from it in this shape should, in any point of view, be an object of regard. But in the populous neighbourhood of the metropolis, it had for a long time been to such a degree an object of regard, as to have attracted and placed in that commanding situation persons by whom it was regarded not merely as an object of desire, but as a necessary source of livelihood, serving in this respect in lieu of a profession or trade. Justices of the peace, of whom it was supposed that they had been drawn into the situation by such views, were distinguished from their colleagues in office by the appellation of trading justices.

Such was the policy by which one branch of an act of the last reign, called the general police act,† was produced. Within the district there in question, fees, though still allowed, and ordered to be received, were no longer allowed to be carried to the private account of the magistrates by whose authority they were received: but, lest for want of adequate retribution there should be a want of fit persons disposed to take upon them the duties of an office so laborious, and in which it was necessary that the attendance should be so assiduous, a certain number of tribunals of this kind were set down in so many divisions of this district, a certain number of magistrates attached to each tribunal, and, in lieu of all emolument in the shape of fees, a certain fixed salary provided for each magistrate.

To some parts of the plan, objections were made, while it was in dependency for acceptance: but to the part here in question, nothing like an objection ever was or ever could be made. Nobody in this instance made a doubt of the corruptive tendency of the retribution presented in the shape of fees: to no one was it ever matter of doubt, that, in some way or other, for the sake of the money attached to the business, magistrates of the description in question contrived somehow or other to make business: to no one was it ever matter of doubt, but that (howsoever it might be in respect of delay) factitious vexation and expense, to a degree calling loudly for the correcting hand of the legislator, was the result.

But, whatsoever may have been the proportion of business made for their own benefit by those unlearned magistrates, it never could have been great enough to approach to a competition with the proportion regularly, and from the beginning of things, manufactured by their learned superiors and superintendents. Compared with the factitious vexation regularly inflicted by the courts of technical procedure—inflicted with the utmost regularity, without danger of punishment, without fear of reproach, with undefined power of punishment of their own creation for their protection against reproach,—punishment denounced or destined to be the severer, the juster and better merited the reproach;—compared with this, the utmost vexation attached to any profit ever made, or capable of being made, by any one of those unlearned magistrates, was a flea-bite.

Proportioned—at least with an exactness sufficient to the present purpose—proportioned to the mischief suffered on the one part, has been the emolument received on the other. While the unlearned magistrate has been picking it up by shillings, his learned superior has been sweeping it in by pounds. Between them, to whom are we to look for the real trading justice? On the one part we see the prodigiously greater share of the profit; on the other, the whole of the odium, and the exclusive possession of the name.

The trading justice, so called, made business. Admitted. But (to say no more of profits, and quantities, and proportions) what means, what instruments, did he employ in making it? By what aggravation did he ever add to that degree and species of improbity, without which the effect could not have been produced? What did he ever do towards nursing ignorance, towards generating misconception, towards confounding and obliterating in the public mind the very idea of true justice? When did he ever refuse a hearing to both parties, or to either? When did he ever condemn a man unheard? In what instance is his tribunal removed, by his contrivance, out of the reach of those whose fate is attached to their attendance on it? When did he refuse, refuse to all men, so much as a show of justice, for four, for six, for twelve whole months together? In what instance did he ever keep parties for months and years upon the rack, while men in partnership and confederacy with him were loading them with vexation and expense by papers in which a small portion of unnecessary sense was drowned in a sea composed of surplusage, nonsense, and lies? In what instance did he ever, to the dismay and ruin of the suitor, break the faith plighted to him by the legislator, by a decision in which no regard was so much as professed to be paid to the merits of the cause? By what jargon did he ever befoul and corrupt the language of common sense and reason? By what lies, under the name of fiction, did he ever defile his own lips, or compel suitors and their agents to defile theirs?

Thus it is, under the imperfect hold which the regard for justice and consistency hath as yet obtained over the human mind. Combined with weakness, improbity becomes an object of contempt: combined with power, the same improbity becomes an object of venetation. Acting on a petty scale, the unsuccessful robber mounts the gallows under his own name; acting on a great scale, the successful robber translates robber into king or emperor, and seats himself on a throne. The man who, without office or power, obtains money by false pretences, is called a swindler, and, under the name and pretence of temporary, consigned to perpetual, banishment (not to speak of slavery:) the man who, in office, and with power for his protection, obtains the same money by pretences equally false, is styled a judge, and beholds for his benefit mendacity softened into fiction, and extortion converted into law.

Thus it is, even to this day: but till when shall it continue so to be? To cause it so to be no longer, parliament needs but to tread in its own steps.

Not that, by the mere substitution of salaries to fees, the mischief could now be cured. The rule, sublatâ causâ tollitur effectus, may hold in some cases, but this is not of the number of them. The Augean stable was not emptied, nor even in any degree cleansed, either by the fattening or the slaughter of the animals by which it had been filled.

If the system be an immedicabile vuluus in the excision of it lies an indispensable part of the remedy: for the remedy we need not go far; it stares every man in the face.*

[* ]To this list may be added the small-debt courts in Scotland, which correspond, in a great measure, with the courts of conscience in England, but have this generic difference, that they form a uniform system over the whole country. They are held by justices of peace for sums not exceeding £5, and by sheriffs for sums not exceeding £8: 6: 8. See 6 Geo. IV. c. 48, and 7 Will. IV. and 1 Vict. c. 41.—Ed.

[† ]In arbitration courts (courts in which the judges are chosen by the parties,) there is no power either to compel the attendance of unwilling witnesses,a or so much as to employ fear of punishment, in the usual or in any other shape, for ensuring the veracity of willing ones: and, as no man can be subject to them without his own consent, it is only when both parties are willing to submit to justice, that their jurisdiction can come into existence. A court that cannot act except when both parties are content to do what is right, bears but too near a resemblance to a physician (if such a one there were) who would not prescribe except when the patient was in good health.

In the institution of these courts, the legislature conceived itself no doubt to be providing so many places of refuge, into which honest litigants might make their escape from the harpies of chicane. The man of law knows better things. Under his management, it has perhaps operated rather in increase than in diminution of the mass of made business. From those unlearned judges, who want nothing but power to receive the evidence in its best shape, an appeal is open on both sides to those profoundly learned judges, with whom it is an inviolable rule never to receive evidence for their own use in any shape but that which (in the opinion of everybody) wants nothing but the absence of the sort of security that has been made to depend upon the caremony of an oath, to be the very worst imaginable.

[* ]See Book IX. Exclusion.

[† ]Supra, Chap. XII.

[* ]It is proper to observe here, that the praise bestowed by Mr. Bentham upon the existing courts of natural procedure, is confined, in the strictest sense, to the procedure of these courts, and by no means extends to the constitution of the courts themselves. In many of these courts, it is well known that justice is very badly administered. What, however, we may be very certain of, is, that the cause of this bad administration of justice is not the absence of the technical rules; and that if, over and above all other sources of badness, the practice of these courts were afflicted, in addition, with the rules of technical procedure, they would be not only no better, but beyond comparison worse, than they are.

The real and only cause of the badness of the courts of natural procedure (in so far as they are had,) is that which is the cause of the maladministration of so many other departments of the great field of government—defect of responsibility on the part of those persons, to whom the administration of them is entrusted.

Causes of such defect of responsibility:—

1. Defect of publicity. In the case of a justice of peace, administering judicature, alone, or in conjunction with a brother justice, at his own house, or on his bowling-green, or wherever he happens to be, publicity does not exist in any degree. In the case of courts of conscience, there is (I believe) nominal, but there can scarcely be said to be effectual, publicity; since the apparent unimportance of the cause prevents the proceedings in it from being reported in the newspapers, and would prevent it, even if reported, from attracting in general any portion, sufficient to operate as a security, of public attention.

2. Number of judges. In many of the courts of conscience, the tribunal is composed of a considerable number of officers; though any greater number than one, or at most two (one to officiate when the other is sick, or, from any other cause, unavoidably absent,) can serve no purpose but that of dividing, and in that manner virtually destroying responsibility.

3. Defect of appeal. In a great variety of cases, no appeal lies from the decision of individual justices of peace, except to the quarter-sessions, that is to say, from the justices individually to the justices collectively. How fruitless an appeal of this sort must in general be (not to speak of its expense) is evident enough. What little value it has, is mainly owing to the greater effectual publicity attendant on the proceedings of a court of general sessions, which are generally reported in the local papers, and always excite more or less of interest in the neighbourhood.

4. The judges exempt from punishment or even loss of office, in the event of misconduct.

If the party injured by the decision of a justice of peace is able and willing to go to the expense of a motion for a criminal information in the King’s Bench, or an indictment at Nisi Prius, or an action against the justice for damages; and if, having done so, he can prove, to the satisfaction of the judges, the existence of what is called malicea on the part of the magistrate, by whose unjust decision he has been injured: all these things being supposed, he may then have some chance of seeing some punishment inflicted upon his oppressor; though even then probably a very inadequate one; the prevailing doctrine being, that the proceedings of an unpaid magistrate ought to be construed liberally and indulgently, as otherwise no gentleman will consent to take upon himself the office.

But, without the above preliminaries, who ever heard of an English justice of peace who was so much as suspended from the commission, on the ground of any misconduct, however gross? And a country justice must either have very bad luck, or play his cards extremely ill, if, out of every thousand cases of misdecision, there be so much as one or two in which all these conditions meet.—Editor.

[† ]Ruffhead’s Index to the Statutes; tit. General Issue.

[* ]Is there so much as a single case in which the necessity of special pleading will be seriously asserted, or any specific use whatever found for it? If there were any sort of case in which a pretence to that effect would be more plausible than in another, it would be the case of that sort of action (ejectment) by means of which the title to an interest in landed property is tried. But, from this most important of all claims of property, the nuisance of special pleading has been cleared away: cleared away, and (what upon the first mention of it seems unaccountable enough) not in the way of legislation, but in the way of jurisprudence, by lawyers themselves. But whatever they have sacrificed in this shape, they have made themselves ample amends for, by the clouds of fiction and jargon in other shapes, by which they have succeeded in rendering this important division of the field of procedure (naturally as intelligible as important) more completely unintelligible, and pregnant with misconception, uncertainty, and made business, than any other.

[† ]A curious spectacle to any man, and an interesting one to him (if such a man there be) who has the interests of justice sincerely at heart, is to observe the diversity of the contrivances which, in different ages and countries, lawyers have had recourse to, the shifts they have sometimes been put to, to make business. In the time of Henry II.,a and even so late as that of Edward I. or II.,b science consisted almost exclusively in nursing, for the benefit of a malâ fide defendant, lying excuses, by which the parties were prevented, as long as possible, from coming together in the presence of the judge. That consummation at length effected, no traces appear more of any further dispute or difficulty. The novelist takes his leave of hero and heroine, when he has brought them together in the presence of the priest: the institutionalist of those days takes his leave of plaintiff and defendant, when he has once brought them together in the presence of the judge. Ages and ages before this, Roman lawyers, acting in their own original theatre, had given themselves the benefit of a sort of special pleading; in their visit to this island they brought it with them of course. English lawyers, adding to the Roman mass of special pleading moulded to their own purposes, a mass of fiction and jargon of their own growth, have worked up a mass of mendacity and nonsense, such as the whole army of continental lawyers may look upon with envy and despair.

The climate of Scotland being somehow or other less favourable than that of England to the growth of jargon, and in particular of that nonpareil species which is called fiction; Scotch lawyers, notwithstanding their importations from the continent, appear (judging from some of their books) to have been sadly at a loss for materials out of which to spin out the thread of litigation: they have made a sort of Penelope’s web of it, doing the work over and over again, as long as the patience of suitors could be made to last. See what has been said in Chapter IV. on the subject of sham representations.

[* ]This, as the reader will observe, was written before the recent act, which, in the instance of the twelve judges, commuted fees for salaries. The evil, however, still subsists, in regard to a vast variety of judicial offices.—Editor. [This commutation was not finally settled, until the passing of the 2 & 3 Will. IV. c. 116. Vide supra, p. 199.—Ed. of this Edition.]

[† ]By the 32 Geo. III. c. 53, seven public offices were established in the metropolis: there are now nine police offices, and by the last Police Act, 2 & 3 Vict. c. 71, that number may be increased. The police magistrates are paid by fixed salaries: all fees being accounted for by a receiver appointed by the Act of Parliament.—Ed.

[* ]For want of the requisite limitations and exceptions, the most salutary rules may be carried too far, and misapplied. It is only in so far as it may be in a man’s power to multiply fees by multiplying occasions for fees, that the principal reason for the abolition of fees has place. In other respects, it is of use that reward should keep pace as close as possible with service. The closer it keeps pace with service, the more it sweetens service; and alacrity, instead of disgust, is the result. Under a salary, it is a man’s interest to be as idle and as negligent as he can venture to be, as he can be, without subjecting himself to punishment.

[† ]In arbitration courts (courts in which the judges are chosen by the parties,) there is no power either to compel the attendance of unwilling witnesses,a or so much as to employ fear of punishment, in the usual or in any other shape, for ensuring the veracity of willing ones: and, as no man can be subject to them without his own consent, it is only when both parties are willing to submit to justice, that their jurisdiction can come into existence. A court that cannot act except when both parties are content to do what is right, bears but too near a resemblance to a physician (if such a one there were) who would not prescribe except when the patient was in good health.

In the institution of these courts, the legislature conceived itself no doubt to be providing so many places of refuge, into which honest litigants might make their escape from the harpies of chicane. The man of law knows better things. Under his management, it has perhaps operated rather in increase than in diminution of the mass of made business. From those unlearned judges, who want nothing but power to receive the evidence in its best shape, an appeal is open on both sides to those profoundly learned judges, with whom it is an inviolable rule never to receive evidence for their own use in any shape but that which (in the opinion of everybody) wants nothing but the absence of the sort of security that has been made to depend upon the caremony of an oath, to be the very worst imaginable.

[* ]It is proper to observe here, that the praise bestowed by Mr. Bentham upon the existing courts of natural procedure, is confined, in the strictest sense, to the procedure of these courts, and by no means extends to the constitution of the courts themselves. In many of these courts, it is well known that justice is very badly administered. What, however, we may be very certain of, is, that the cause of this bad administration of justice is not the absence of the technical rules; and that if, over and above all other sources of badness, the practice of these courts were afflicted, in addition, with the rules of technical procedure, they would be not only no better, but beyond comparison worse, than they are.

The real and only cause of the badness of the courts of natural procedure (in so far as they are had,) is that which is the cause of the maladministration of so many other departments of the great field of government—defect of responsibility on the part of those persons, to whom the administration of them is entrusted.

Causes of such defect of responsibility:—

1. Defect of publicity. In the case of a justice of peace, administering judicature, alone, or in conjunction with a brother justice, at his own house, or on his bowling-green, or wherever he happens to be, publicity does not exist in any degree. In the case of courts of conscience, there is (I believe) nominal, but there can scarcely be said to be effectual, publicity; since the apparent unimportance of the cause prevents the proceedings in it from being reported in the newspapers, and would prevent it, even if reported, from attracting in general any portion, sufficient to operate as a security, of public attention.

2. Number of judges. In many of the courts of conscience, the tribunal is composed of a considerable number of officers; though any greater number than one, or at most two (one to officiate when the other is sick, or, from any other cause, unavoidably absent,) can serve no purpose but that of dividing, and in that manner virtually destroying responsibility.

3. Defect of appeal. In a great variety of cases, no appeal lies from the decision of individual justices of peace, except to the quarter-sessions, that is to say, from the justices individually to the justices collectively. How fruitless an appeal of this sort must in general be (not to speak of its expense) is evident enough. What little value it has, is mainly owing to the greater effectual publicity attendant on the proceedings of a court of general sessions, which are generally reported in the local papers, and always excite more or less of interest in the neighbourhood.

4. The judges exempt from punishment or even loss of office, in the event of misconduct.

If the party injured by the decision of a justice of peace is able and willing to go to the expense of a motion for a criminal information in the King’s Bench, or an indictment at Nisi Prius, or an action against the justice for damages; and if, having done so, he can prove, to the satisfaction of the judges, the existence of what is called malicea on the part of the magistrate, by whose unjust decision he has been injured: all these things being supposed, he may then have some chance of seeing some punishment inflicted upon his oppressor; though even then probably a very inadequate one; the prevailing doctrine being, that the proceedings of an unpaid magistrate ought to be construed liberally and indulgently, as otherwise no gentleman will consent to take upon himself the office.

But, without the above preliminaries, who ever heard of an English justice of peace who was so much as suspended from the commission, on the ground of any misconduct, however gross? And a country justice must either have very bad luck, or play his cards extremely ill, if, out of every thousand cases of misdecision, there be so much as one or two in which all these conditions meet.—Editor.

[† ]A curious spectacle to any man, and an interesting one to him (if such a man there be) who has the interests of justice sincerely at heart, is to observe the diversity of the contrivances which, in different ages and countries, lawyers have had recourse to, the shifts they have sometimes been put to, to make business. In the time of Henry II.,a and even so late as that of Edward I. or II.,b science consisted almost exclusively in nursing, for the benefit of a malâ fide defendant, lying excuses, by which the parties were prevented, as long as possible, from coming together in the presence of the judge. That consummation at length effected, no traces appear more of any further dispute or difficulty. The novelist takes his leave of hero and heroine, when he has brought them together in the presence of the priest: the institutionalist of those days takes his leave of plaintiff and defendant, when he has once brought them together in the presence of the judge. Ages and ages before this, Roman lawyers, acting in their own original theatre, had given themselves the benefit of a sort of special pleading; in their visit to this island they brought it with them of course. English lawyers, adding to the Roman mass of special pleading moulded to their own purposes, a mass of fiction and jargon of their own growth, have worked up a mass of mendacity and nonsense, such as the whole army of continental lawyers may look upon with envy and despair.

The climate of Scotland being somehow or other less favourable than that of England to the growth of jargon, and in particular of that nonpareil species which is called fiction; Scotch lawyers, notwithstanding their importations from the continent, appear (judging from some of their books) to have been sadly at a loss for materials out of which to spin out the thread of litigation: they have made a sort of Penelope’s web of it, doing the work over and over again, as long as the patience of suitors could be made to last. See what has been said in Chapter IV. on the subject of sham representations.

[a ]This was so under the 9 & 10 Will. III. c. 15; but now, by the 3 & 4 Will. IV. c. 42, § 40, the attendance of unwilling witnesses may be made compulsory. By this act the arbitrator is empowered to administer an oath to the witnesses.—Ed.

[a ]In an action against a justice, according to Mr. Starkie, the plaintiff cannot recover more than twopence damages, nor any costs, unless it be alleged in the declaration that the acts with which the justice is charged were done maliciously, and without any reasonable or probable cause.—[Such are the terms of the act “to render justices of the peace more safe in the execution of their duty,” viz. 43 Geo. III. c. 141.—Ed.]

[a ]See Glanville.

[b ]See Hingham magna.