The Online Library of Liberty

A project of Liberty Fund, Inc.

• Rationale of Judicial Evidence.
• Book V.: —of Circumstantial Evidence.
• Chapter I.: Circumstantial Evidence, What—how Distinguished From Direct Evidence.
• Chapter II.: Of Probabilizing, Disprobabilizing, and Infirmative Facts—examples of Principal Facts, With the Corresponding Evidentiary Facts—improbability and Impossibility, How Distinguished From the Other Kinds of Circumstantial Evidence.
• Chapter III.: Of Real Evidence, Or Evidence From Things.
• Chapter IV.: Of Preparations, Attempts, Declarations of Intention, and Thrlats, Considered As Affording Evidence of Delinquency.
• Chapter V.: Of Non-responsion, and False, Or Evasive Responsion, Considered As Affording Evidence of Delinquency.
• Chapter VI.: Of Spontaneous * Self-inculpative Testimony, Considered As Affording Evidence of Delinquency.
• Chapter VII.: Of Confessorial and Otherwise Self-disserving Evidence, Extracted By Interrogation.
• Chapter VIII.: Of Confusion of Mind, Considered As Affording Evidence of Delinquency.
• Chapter IX.: Of Fear, In So Far As Indicated By Passive Deportment, Considered As Affording Evidence of Delinquency.
• Chapter X.: Of Clandestinity, Considered As Affording Evidence of Delinquency.
• Chapter XI.: Of Suppression Or Fabrication of Evidence, Considered As Affording Evidence of Delinqufncy.
• Chapter XII.: Of Avoidance of Justiciability, Considered As Affording Evidence of Delinquency.
• Chapter XIII.: Of the Situation of the Supposed Delinquent In Respect of Motives, Means, Disposition, Character, and Station In Life, Considered As Affording Evidence of Delinquency.
• Chapter XIV.: Posteriora Priorum—priora Posteriorum. Fact Indicated, a Prior Event; Evidentiary Fact, a Posterior Event In the Same Series: and E Converso.
• Chapter XV.: On the Probative Force of Circumstantial Evidence.
• Chapter XVI.: Of Improbability and Impossibility. *
• Chapter XVII.: Atrocity of an Alleged Offence, How Far a Ground of Incredibility. ‡
• Book VI: Of Makeshift Evidence.
• Chapter I.: Of Makeshift Evidence In General.
• Chapter II.: Of Extrajudicially Written Evidence.
• Chapter III.: Of Unoriginal Evidence In General.
• Chapter IV.: Of Supposed Oral Evidence Transmitted Through Oral, Or Hearsay Evidence.
• Chapter V.: Instructions Concerning the Probative Force of Extrajudicially Written and Hearsay Evidence. *
• Chapter VI.: Of Supposed Written Evidence, Transmitted Through Oral; Or Memoriter Evidence. *
• Chapter VII.: Of Supposed Oral Evidence, Transmitted Through Written; Or Minuted Evidence.
• Chapter VIII.: Of Supposed Written Evidence, Transmitted Through Written; Or Transcriptitious Evidence.
• Chapter IX.: Of Reported Real Evidence: I. E. Supposed Real Evidence, Transmitted Through Oral Judicial Testimony, Or Through Casually-written Evidence.
• Chapter X.: Of Evidence Transmitted Through an Indefinite Number of Media.
• Chapter XI.: What Ought, and What Ought Not, to Be Done, to Obviate the Danger of Misdecision On the Ground of Makeshift Evidence.
• Chapter XII.: Aberrations of English Law In Regard to Makeshift Evidence.
• Book VII.: Of the Authentication of Evidence.
• Chapter I.: Authentication, What. Connexion of This Subject With That of Preappointed Evidence.
• Chapter II.: Subject-matters of Authentication, What. Modes of Authentication In the Case of Real and of Oral Evidence.
• Chapter III.: Modes of Authentication In the Case of Written Evidence.
• Chapter IV.: Modes of Deauthentication In the Case of Written Evidence.
• Chapter V.: Distinction Between Provisional and Definitive Authentication. Rules For the Legislator and the Judge, Concerning the Authentication of Written Evidence.
• Chapter VI.: Aberrations of English Law In Regard to the Authentication of Written Evidence.
• Book VIII.: On the Cause of Exclusion of Evidence—the Technical System of Procedure.
• Chapter I.: Object of This Inquiry—its Connexion With the Subject of the Present Work.
• Chapter II.: Technical Or Fee-gathering, and Natural Or Domestic, Systems of Procedure, What?
• Chapter III.: Cause of the Vices of Technical Procedure, the Sinister Interest of the Judge.
• Chapter IV.: Particular Exemplifications of the Vices Introduced By the Fee-gathering Principle Into Technical Judicature.
• Chapter V.: List of the Devices Employed Under the Fee-gathering System, For Promoting the Ends of Established Judicature, At the Expense of the Ends of Justice. *
• Chapter VI.: First Device—exclusion of the Parties From the Presence of the Judge.
• Chapter VII.: Second Device—tribunals Out of Reach: Or, Swallowing Up the Inferior Courts.
• Chapter VIII.: Third Device—bandying the Cause From Court to Court.
• Chapter IX.: Fourth Device—blind Fixation of Times For the Oplrations of Procedure.
• Chapter X.: Fifth Device—sitting At Long Intervals.
• Chapter XI.: Sixth Device—motion Business.
• Chapter XII.: Seventh Device,—decision Without Thought; Or Mechanical Judicature.
• Chapter XIII.: Eighth Device—chicaneries About Notice.
• Chapter XIV.: Ninth Device—principll of Nullification.
• Chapter XV.: Tenth Device—mendacity-licence.
• Chapter XVI.: Eleventh Device—ready Written Pleadings.
• Chapter XVII.: Twelfth Device—principle of Jargon, Or Jargonization.
• Chapter XVIII.: Thirteenth Device—fiction.
• Chapter XIX.: Fourteenth Device—entanglement of Jurisdictions.
• Chapter XX.: Fifteenth Device—means of Securing Forthcomingness, Uselessly Divfrsified.
• Chapter XXI.: Sixteenth Device—creation of Needless and Useless Offices.
• Chapter XXII.: Seventeenth Device—sham Pecuniary Checks to Delay, Vexation, and Expense.
• Chapter XXIII.: Eighteenth Device—double-fountain Principle.
• Chapter XXIV.: Nineteenth Device—laudation of Jurisprudential Law.
• Chapter XXV.: Habitual Contempt Shown By Judges to the Authority of the Legislature.
• Chapter XXVI.: Opinion-trade.
• Chapter XXVII.: Extension of the Above Devices to Substantive Law, As Far As Applicable.
• Chapter XXVIII.: Remedies Suggested For the Above Evils.
• Chapter XXIX.: Apology For the Above Exposure.
• Book IX.: On Exclusion of Evidence.
• Part I.: On the Exclusionary System In General.
• Chapter I.: Exclusion of Evidence. Its Connexion With the Ends of Justice.
• Chapter II.: Disregard Shown to the Ends of Justice Under the Exclusionary System.
• Chapter III.: General View of the Mischiefs of the Exclusionary System.
• Chapter IV.: Dicta of Judges On the Exclusionary System.
• Chapter V.: Species of Exclusion.
• Part II.: View of the Cases In Which Exclusion of Evidence Is Proper.
• Chapter I.: General View of the Cases In Which Exclusion Is Proper.
• Chapter II.: Exclusion On the Ground of Vexation, In What Cases Proper.
• Chapter III.: Exclusion On the Ground of Expense, In What Cases Proper.
• Chapter IV.: Exclusion On the Ground of Delay, In What Cases Proper.
• Chapter V.: Exclusion of Irrelevant Evidence, Proper.
• Chapter VI.: Exclusion of the Evidence of a Catholic Priest, Respecting the Confessions Intrusted to Him, Proper.
• Chapter VII.: Remedies Succedaneous to the Exclusion of Evidence.
• Part III.: View of the Cases In Which Evidence Has Improperly Been Excluded On the Ground of Danger of Deception. *
• Chapter I.: Cases Enumerated.
• Chapter II.: Danger of Deception, Not a Proper Ground For Exclusion of Evidence.
• Chapter III.: Impropriety of Exclusion On the Ground of Interest.
• Chapter IV.: Impropriety of Exclusion On the Ground of Improbity.
• Chapter V.: Impropriety of Exclusion On the Ground of Religious Opinions.
• Chapter VI.: Impropriety of Exclusion On the Ground of Mlntal Imbecility, and Particularly of Infancy and Superannuation.
• Chapter VII.: Of the Restoratives For Competency, Devised By English Lawyers.
• Part IV.: View of the Cases In Which Evidence Has Improperly Been Excluded On the Ground of Vexation.
• Chapter I.: Vexation to Individuals Arising Solely Out of the Execution of the Laws, Not a Proper Ground of Exclusion.
• Chapter II.: Enumeration of the Sorts of Evidence Improperly Excluded On This Ground By English Law.
• Chapter III.: Impropriety of the Exclusion Put Upon Self-disserving Evidence By English Law.
• Chapter IV.: Inconsistencies of English Law In Regard to Self-disserving Evidence.
• Chapter V.: Examination of the Cases In Which English Law Exempts One Person From Giving Evidence Against Another.
• Part V.: View of the Cases In Which Evidence Has Improperly Been Excluded On the Double Account of Vexation and Danger of Deception.
• Chapter I.: Impropriety of Excluding the Testimony of a Party to the Cause, For Or Against Himself.
• Chapter II.: Examination of the Course Pursued In Regard to the Plaintiff’s Testimony By English Law.
• Chapter III.: Examination of the Course Pursued In Regard to the Defendant’s Testimony By English Law.
• Chapter IV.: Impropriety of Excluding the Testimony of a Party to the Cause, For Or Against Another Party On the Same Side. Examination of the Course Pursued In This Respect By English Law.
• Chapter V.: Probable Origin of the Above Exclusionary Rules.
• Part VI.: Of Disguised Exclusions.
• Chapter I.: Exclusion of Evidence For Want of Multiplicity.
• Chapter II.: Exclusion By Limitation Put Upon the Number of Witnesses.
• Chapter III.: Exclusion Put By Blind Arrangements of Procedure Upon Indeterminate Portions of the Mass of Evidence.
• Chapter IV.: Exclusion By Rendering a Particular Species of Evidence Conclusive.
• Chapter V.: Of the Rule, That Evidence Is to Be Confined to the Points In Issue. ‡
• Chapter VI.: Of Negative Exclusions.
• Book X.: Instructions to Be Delivered From the Legislator to the Judge, For the Estimation of the Probative Force of Evidence.
• Chapter I.: Preliminary Observations.
• Chapter II.: Of Interest In General, Considered As a Ground of Untrustworthiness In Testimony.
• Chapter III.: Of Pecuniary Interest, Considered As a Ground of Untrustworthiness In Testimony. *
• Chapter IV.: Of Interest Derived From Social Connexions In General.
• Chapter V.: Of Interest Derived From Sexual Connexions.
• Chapter VI.: Of Interest Derived From Situation With Respect to the Cause Or Suit.
• Chapter VII.: Of Improbity, Considered As a Cause of Untrustworthiness In Testimony.
• Chapter VIII.: Of the Comparative Mischief In the Event of Misdecision, to the Prejudice of the Plaintiff’s Or of the Defendant’s Side.
• Chapter IX.: Ulterior Safeguards Against the Inconveniencies Which May Present Themselves As Liable to Arise From the Abolition of the Exclusionary Rules.
• Chapter X.: Recapitulation.
• Conclusion.
• Note On the Belgic Code.

CHAPTER XXIX.

APOLOGY FOR THE ABOVE EXPOSURE.

If the judicial character has been held up in a light considerably different from that in which it has been accustomed to be viewed—if it has been treated with a degree of unprecedented freedom,—it is not the individual, it is the species that has been struck at: nor yet the species, but in respect of that situation in which the conduct of any other part of the human species would have been the same.

The general predominance of personal interest over every other interest—over every other force that can be applied to the human mind—is a principle not only not capable of being done away, but which for the good of mankind there exists no sufficient reason for endeavouring, for wishing, to do away: since it is upon this general predominance that (when the matter is maturely considered) the continuance of the whole species—of every individual belonging to it, will be found to depend. Bad as the consequences sometimes are of an over-anxiety on the part of each individual for his own welfare; yet, if the chief object of each man’s anxiety were placed without himself—without the sphere of his own knowledge and experience, the consequence would be much worse. In the existing state of things, by this over-anxiety the well-being of society receives more or less disturbance: in the other state of things supposed, the very being of society would be very soon destroyed.

The man of probity and public spirit, the man of general and universal benevolence, is, not he in whose instance a continual sacrifice is made of personal interest, but he in whose instance situation and character have concurred in effecting between his personal interest and the public interest such a connexion, that, in labouring to promote the public interest, he is labouring to promote his own interest at the same time.

If it be of use to man to know man’s nature for what it is,—most highly must it be of use to know what man’s nature is, in the instance of those men on whose conduct the lot of all others is in so high a degree dependent. And, for the praise of a show of candour utterly incompatible with true wisdom, to forego any part of a species of knowledge at once so necessary, and (it might almost be said) so new, is a species of suavity, than which nothing could be more weak—few things more injurious to the interest of the state and of mankind.

Suppose a proposition had been made for placing in the hands of Bonaparte the conduct of the war carrying on against Bonaparte. The proposition would probably not have been acceded to; but for the refusal to accede to it no possible reason could be given that would not amount to this,—viz. that it would be against his interest to conduct the war in such way as to this country should be attended with most advantage.

But to conduct the war of this country against Bonaparte in the manner most advantageous to the country, would not have been more undeniably contrary to the interest of Bonaparte, than to conduct the business of judicature in the manner most conformable to the interests of the people in respect of the ends of justice, is contrary to the interest of the judges: circumstanced as are at present these arbiters of human destiny.

The pictures which, in this no less than in other countries, interest and interest-begotten prejudice have been so universally accustomed to give of men in high situations, and more particularly of men in the situation of judges, are such in the composition of which not only the extreme of imbecility, but, if not improbity itself, the effects of it in a very high degree, are combined.

Praise bestowed upon misconduct, upon misconduct in any situation or in any shape, is a bounty given for it; operates as an encouragement to persevere in it.

As in no other situation would any instance be to be found, where, with an interest so opposite to that of the public at large, so much power of giving effect to that interest is combined, so neither would there be found any other situation in which praise has been so little merited, and at the same time so lavishly bestowed.

The notion so studiously propagated—the notion that, by holding up in an unwelcome point of view the conduct of men in office, and more particularly in judicial office, their power or their disposition to comport themselves worthily in it is lessened,—this notion, convenient as it is to those who are thus studious to propagate it, is a notion than which nothing can be at once more erroneous and more pernicious. It holds up to view as a cause of disease, the sole remedy against that same disease.

The notion that men’s obedience to the laws, that their disposition to pay such obedience, depends in any considerable degree upon the good opinion, the respect and reverence, entertained by them for the individual by whom those laws are administered, is a mere fallacy. Happily for mankind, in this country at any rate, it is bottomed on much firmer ground—on ground which is not exposed to be shaken by vice and improbity in the person of individuals.

The disposition to pay obedience to the official mandates of a judge, has for its cause, not any opinion concerning the character of the individual, but the persuasion so thoroughly and so happily rooted in every reflecting breast, of the necessity of such obedience to the preservation of everything that any man holds dear. This necessity being the same, under every variation which the character of individuals in that situation ever has undergone, or is susceptible of,—the persuasion is therefore altogether independent of the character of the individuals by whom the situation is at any time filled.

If, indeed, by any disadvantageous impression given of the wisdom and probity of these functionaries, any such disposition were produced on the part of the body of the people, as that of rising up in arms against the authority of these functionaries (which, so long as they have the support of the supreme power, could not be done without rising up in arms against the authority of the supreme power:) then, indeed, the obedience of the people might thus be shaken, and insurrection and civil war be the result of the views thus given of the system of judicature.

But, though such a result is as easy to conceive as any other, nothing can be more remote from probability or foundation in experience.

From what signs should any such effect be regarded as probable? From the present temper of the people? Deceived by the unanimous certificate and indefatigable eulogiums of all those who are supposed to understand the system—by all those at any rate who have the best means and strongest inducements to engage them to understand it,—the people are in the habit of regarding it as all-perfect; and their disposition towards it, far from being that of discontent and insurrection, is that of blind and indiscriminating admiration and obedience. To the miseries which so large a portion of them are doomed to suffer under it, no false certificates, no sophisms, can render them insensible. But, though incapable of being deceived as to the existence of the effects, they are not the less completely deceived as to the cause. Whatever they suffer under the system, they ascribe to the nature of things; whatever they escape from suffering, the escape from is attributed to the system itself, and to its matchless excellence.

In Blackstone they see their only guide—their only oracle: and from the voice of this oracle, delivering itself under the influence of constant bribery, they hear the faultless excellence of the system proclaimed and trumpeted forth at every page.

In history, is there any example of an insurrection, or (since the infancy of the Roman commonwealth) so much as the least disposition to insurrection, produced in the great mass of the people by the contemplation of any defects in the system of procedure?—so flagrantly defective as that system has in general been, so much more than even the system the defects of which are here endeavoured to be exposed to view.

The following are the reasons for the condemnatory point of view in which the conduct of the fraternity has here all along been placed.

It being their interest to secure the continuance of the whole body of the mischief, in its utmost magnitude; and this interest being universally understood, or rather (more than understood) felt—it is impossible, in the nature of men and things, that they should concur willingly in the giving up of any the smallest part of it; that they should forbear opposing every remedial measure with all their might; that they should give up any the smallest part of it without being forced and compelled to do so, viz. by the clamour and pressure of the thinking part of the people, in and out of parliament; or that the people should be brought to apply any such pressure without a clear and thorough view and conviction of the depravity of the system under which they are suffering.

Be the course of a man’s conduct ever so opposite to that of his duty, ever so pernicious to the public interest,—so long as no disturbance of ease nor loss of reputation to himself is among the effects of his perseverance, his perseverance is among those things of which the public may be sufficiently assured.

If, acting in a state of uniform opposition to every end of justice, and to the interest and welfare of the rest of the community, they receive the same tokens of affection and veneration that would be worthily bestowed on them if the line of their conduct were directly opposite—no expectation could be more idle than that of their changing their conduct, and ceasing to oppose the changes that would be necessary to render the course of judicature conducive to the ends of justice. Every observation, therefore, that can contribute to place their system, and their conduct under it, in its true and proper light, to expose it to that odium which is so justly due to it, is? means to an end—a necessary means to one of the most beneficial ends that human virtue, seconded by human wisdom, can propose to itself.

To bring to light a violation of duty on the part of a set of public men, and at the same time to abstain from every observation the tendency of which is to deprive them of any share of that respect which the public has been in the habit of manifesting towards them, are courses of action absolutely and irreconcilably incompatible. An option must be made; the mischief must be left in its full force, or a line of argument must be entered upon, having for its tendency the eventually divesting them of a correspondent portion of this misplaced and ill-deserved respect.

In doing the mischief which, in the exercise of the power attached to your offices, you are in the habit of doing, and which, by taking a different course, it would be in your power to save yourselves from doing, either you know what you are about, or you do not: if yes, you are deficient in probity—if not, in understanding. This is the dilemma, which he who brings to view pernicious practice in a public man, or set of public men, is continually and unavoidably pressing them with: and this dilemma he must either continue to press them with, or give up his enterprise.

As between want of probity and want of understanding, the higher the degree of intellectual force demanded by, and necessarily exercised in, any situation, public or private, the stronger the assurance that it is not on that side of the mental frame that the failure is to be found. Although the profession here in question affords a remarkable proof how easy it is for sinister interest to reconcile to the grossest absurdity, and bring down to the convenient standard, the strongest and most strenuously exercised minds. Be the absurdity ever so gross,—make it a man’s interest not to see it,—as often as it presents itself, he will shut his eyes: as often as it is spoken of, he will shut his ears: and in neither of these operations is there much difficulty.

This notion, about the duty of abstaining from everything that can tend to diminish the respect paid to the possessors of high offices, and judicial offices in particular,—observe to what it leads. It leads to this: that not only all present abuses are to continue without remedy, but all future ones are to go on accumulating, and accumulating without end. For where is the species or degree of transgression in which a man will not indulge himself, if, while continuing thus to indulge himself, he stands assured that he will not only be safe against punishment or dismissal, but continue in the enjoyment of as much respect, as if, by the directly opposite course, he had manifested himself in ever so high a degree a benefactor to mankind?

It is a notion invented by malefactors—by such as operate, upon the largest scale, for freeing themselves from that faint check which it is in the nature of public opinion to apply to a mal-practice, in those places in which mal-practice, if it has not that check, has none.

In this country, as often as mention is made of the judicial establishment (meaning the judges,) loud and incessant are the boasts made on the score of purity. Wherein consists this purity? What is the impurity, of which the existence is meant to be denied?

What, in the mean time, in respect of purity and impurity (or, to use its other appellation, corruption,) will be found to be the plain and real truth?

Of corruption in that sort of shape in which, in this country (thanks to the publicity of the judicial procedure,) it is not possible, and in which, were it possible, it would be to such a degree unsafe, that no man in his senses would be guilty of it,—they have not, any of them, ever been known, or so much as suspected, to be guilty. This is the case of common bribery.

Of corruption,—in that shape in which it consists in pronouncing an undue decision, in favour of this or that individual, or to the prejudice of this or that other,—no one of them has ever been convicted; possibly, of late years (for in the Earl of Mansfield’s reign it was far otherwise,) no one has ever been suspected. But does it follow that no such injustice has ever been done? On the contrary, not a court in Westminster Hall, not a day of sitting, in which injustice in this shape may not have been abundant.

What is not known of any one of them, is, that, in any one given individual instance, corruption in this, any more than in that other shape, was ever committed. But what is known of every one of them (at least in so far as future conduct can be known from past habits, and discourses, and connexions,) is, that there is not one of them on whose conscience that facility which an English judge possesses of deciding a litigated point one way or other as is most agreeable to him, ever appeared to sit heavy; and that there is not one of them to whom the only possible remedies to that perennial fountain of corruption,—viz. the conversion of unwritten into written law, and the substitution of natural to technical procedure,—would not be objects of abhorrence.

The power of giving loose to all such partialities, is dear to them as their life’s blood: and is credit to be given to them or to their eulogists, when they protest that the idea of making any use of that same power never so much as entered into their thoughts? On no account will they endure to part with the means; and can any credit be due to their protestations, when they protest that they abhor the idea of applying those means to their end—to the only end in respect of which they can be of any use?

Of corruption in a judge, what and where is the mischief? In what shape can the mischief show itself, if it be not in the production, the known and wilful production, of one or more of the evils correspondent and opposite to the several ends of justice? But, that to a most enormous amount all these evils are actually and constantly produced,—all produced by every one of these servants of the public, and in every individual cause that comes before them without exception,—is matter of notoriety, and has been and will be brought to view over and over again in the course of these pages. That, of all persons in the world, the authors of these evils are those to whom it is least possible that the existence of them should be unknown, is surely manifest enough.

What is known of them is, that, by all of them more or less (though in much the largest proportion by the highest among them in power and influence,) profit in various shapes is derived from all these evils—profit, the quantum of which keeps pace with the quantity of the evils.

Is this corruption, or is it not? If it he not corruption, surely it is something equally bad. If it be corruption, wherein consists their boasted purity? That, in any hazardous and retail way, they are not known to practise corruption; but that, in the safe and wholesale way, they do practice it, and are universally known to practise it.

Of corruption in a judge is the mischief (not to speak of guilt,—for, when separate from that of mischief, the question of guilt is here an idle question)—of corruption in a judge is the mischief done away—is it so much as lessened—by the circumstance that in the commission of it he stands secured, not only against punishment, but against shame? Surely, by such a circumstance, the mischief (far from being lessened) cannot but be in an enormous degree increased.

In the shape of partiality, favourable and unfavourable, suppose it the wish and intention of a man, in the sort of office in question, to be guilty of corruption every day in his life. With the exception of the security afforded by publicity, and the feeble and scanty application of jury trial, nothing more proper or effectual could a man set about doing, than to continue in their present state the rule of action and the system of procedure: the rule of action without words for the expression of it; the system of procedure of that sort which has the refusal to hear or see the parties for its essential and characteristic principle: a state of things in which there is really no law, and in which that which by a cruel abuse of language is called the law, is no better than one immense and everlasting share; a field covered on its whole surface with spring guns and man-traps, and without so much as a board to warn the passenger of the destruction to which he is doomed.

If, under the notion of doing justice, that of fulfilling the collateral ends (as herein so often distinguished and described) as well as the direct ends, be included, it may be asserted, on the fullest examination and with the strictest truth, that in Westminster Hall, from year’s end to year’s end, in no one of its four courts, in no one of the causes therein (with or without hearing) determined (for in what is there called judicature, neither seeing the parties nor hearing them is necessary,) no, not in so much as a single one of them, is justice ever done.

True it is, that—so far as concerns the direct ends of justice,—injustice, however deplorably frequent, and although rendered so by the same means, is not thus invariably constant. In that sort of cause in which, quantity being pre-ascertained or agreed on, the question is simply (as in the case of a determinate thing, or things to a determinate value, a horse, a house, or a sum of money)—Shall it belong to plaintiff or to defendant?—in a case of this sort, in which justice would be the frequent result were the mode of trial cross and pile, injustice is not always the result. But in the case where quantity is the subject and sole subject of the question,—as when, for instance (transgression being out of dispute) the only question is, what shall be the compensation or what the punishment—what the damages or what the fine?—in a case of this complexion, neither in respect of the direct ends of justice is justice ever done.

He by whom compensation is received with reference to, and in consideration of a wrong sustained, is thereby (i. e. by and after the receipt of such compensation,) if so it be that the compensation be adequate, put in as good a plight as he would have been, had the wrong never been done. On one supposition, therefore, and on one only, is justice, full and complete justice, rendered to the plaintiff: and that is, where the compensation, the money awarded to him, the damages, as it is called, is, to a certain amount, excessive.

But, if in this way justice be rendered to one side, it is only at the expense and by the means of injustice committed to the prejudice of the other side: and if it be true that (for example’s sake, and thus, as it were, in the character of punishment) it is better that compensation should be excessive than defective; if it be better that the shape in which injustice takes place should be that of excessive charge in the name of compensation, and thus excessive loss to the defendant, than in the shape of insufficient receipt in the name of compensation, and thereby undue loss on the side of the plaintiff; still, on whatever side and in whatever shape it falls, injustice is injustice.

Due to the plaintiff on the score of compensation, say £10. Money of his, which, after the receipt of what is allowed him at the charge of the defendant under the name of costs, would remain unreimbursed to him, say £20. Instead of the £10 damages, accordingly, say £30. The injustice at the charge of the plaintiff would thus be avoided; but injustice to the same amount at the charge of the defendant would at the same time be done.

Under a system so constructed, to take any course that shall not be pregnant with the grossest and most palpable injustice, will frequently (not to say commonly) be physically impossible.

Not a cause in which injustice is not done: injustice from which everybody profits, and for which nobody is to blame: not merely for which nobody is actually punishable, but for which nobody ought in justice to be punished; for which, in that sense, nobody is blameable. Here we have misrule brought to a system: the absolute perfection of misrule.

With how much less expense of thought, if not of ingenuity, might a system of real perfection, the perfection of good judicature, have been framed—a system, the very idea of which in the character of a possible system would be scouted as Utopian,—if a tenth part of the reward that has been reaped from injustice, had been attached to the investigation and development of the dictates of utility and justice!

But my Lord such-an-one, or Mr. Justice such-an-one, such honourable men, men who speak at least so nobly,—on every occasion, if you believe them, perfect slaves to justice,—can you impute to them any such horrible disposition as that of a constans et perpetua voluntas suum cuique non tribuendi?* Can you accuse them, on so much as any one occasion since their ascent to that high station, of doing anything that has presented itself to them in the shape of injustice?

Perhaps not: but consider that it is not by them that the system has been brought to what it is: they take it as they find it. Such as it is, it is of course to them the standard of right and wrong. No man ought to be wiser than the laws: no judge ought to be more honest than his predecessor. Whether he ought or no, thus much at least is clear enough, that there is nothing to be got by it.

Consider, that, in the judicial department, as in every other (bating casual irregularities,) the farther back you go in history, the more corrupt and profligate men are found. Consider, for example, that in the time of Henry VI., when judges wanted money they used to fix upon any man that came uppermost, and, converting him into an outlaw, sell what he had, and put the money into their pockets; that the details of the operation were left of course to their clerks;† that the persons thus ruined, getting of course from the receivers no redress against the thieves, complained to parliament; and that parliament, by way of setting matters to rights, declared and ordered that things of that sort should not be done in future.‡ It was a little before this time that Lord Chancellor Fortescue wrote his puff direct, his treatise de laudibus legum Angliæ; since which time there has been a congenial trial of skill between lawyers and auctioneers: the worse the wine, the more need it has of the bush.

Love of justice, with them, is neither more nor less than the love of those established arrangements under which they have been born and bred—under which they have practised as advocates, and sat as judges. In this sense, indeed, their love of justice is strong enough: I suppose they never do anything but what is legal: whatever they do, the fact alone of their doing it, is to my mind conclusive proof of its legality. The Lord Chief Justice of England, would he do anything that were illegal? would he do anything for which, according to law, he were liable to be punished?

Indeed, should a fancy (for argument’s sake) take a chief justice, especially if he had a seat in the cabinet, to do anything illegal, I do not very well see how it would be in his power to compass it. Were the fancy that of going upon the highway, shooting and stripping the first passenger he met, he would stand no better chance, I suppose, than any other highwayman. But as to any mischief done in the exercise of the powers given to him by his office,—how any such mischief should have any illegality in it,—in the conception of that point lies the difficulty that presents itself as insuperable. In such case, illegality means nothing, unless it means liability to punishment: and as to punishment,—by whom, and at whose instance, and by means of what procedure, would it be to be administered? By removal?—think of precedents. By impeachment?—think of precedents; and of the understanding which seems to have been avowed, and to have become universal, on that subject.

If punished, for what, too, should he be punished? For open and wilful violation of the spirit as well as letter of a positive law, on a point in which misconception is impossible? It is every day’s practice.*

Lawyer.—But can you, without compunction, nay without horror, reflect on the disrepute, not to say the odium and contempt, that you have been thus labouring to cast upon so many characters hitherto held sacred, upon so many exalted personages, upon . . . .

Non-Lawyer.—Hold! spare yourself if you please, and at any rate spare me, the enumeration: the Red Book has done it already to our hands. So far as it may happen to individuals to find themselves concerned, I am as free to confess, as you will be ready to believe, that this part of the fruits that may be expected from my labours (whatever it may amount to) is not the part that I reflect on with most pleasure.

One thing you will allow me: that in no sense of the word gain, can I have promised to myself the having much to gain from it.

Another thing you will allow me: that they are not so low in power, in dignity, in credit, in everything, as to be, on this or any other occasion, in danger of receiving, in the opinion and at the hands of the public at large, anything less or worse than justice.

As to any personal feeling on the part of any such high personages; should anything of that sort be really in question, I will freely own to you the system of arithmetic, which, as long as I remember, I have been in the habit of employing on all political occasions: every individual in the country tells for one; no individual for more than one. From so obscure and weak a hand, should any particle of uneasiness find its way into any learned breast,—the assurance of uneasiness far more than equivalent being saved in unlearned breasts by hundreds, will be a sufficient equivalent.

BOOK IX.

ON EXCLUSION OF EVIDENCE.

[* ]See Heineccius on the Institutes, Chap. i.—[“Justitia est constans et perpetua voluntas jus suum cuique tribuendi,” is the well known principium of the first title of the Institutes.—Ed.]

[† ]The officers of the court used to make false entries of the personal appearance of the defendant, whereon they might ground the process of outlawry. It was for the purpose of putting an end to these false entries, that the 10 Hen. VI. c. 4, was passed.—Ed.

[‡ ]At present, things are not exactly in that state. When a debtor, unwilling or unable to pay his debts, is proceeded against in a certain way (by original, the phrase is—do not attempt to understand it,) he is converted into an outlaw. The property, instead of being given to his creditors, is given (that is, is said to be given) to the king. A whole host of official men fasten upon it, like crows upon a carcase: the creditors, and after them the debtor, get the bones.a As to the official and other learned members of the legal partnership,—instead of getting the whole, as under the arrangement temp. Hen. VI., they do but come in pari passu. So far there is an improvement.—On the other hand, what they devour, they digest at their ease, under the shade of law. No parliament, to say, such things shall not be in future.

[* ]The case of treble costs.—See Chap. XXVI. Legislature Contemned.

[‡ ]At present, things are not exactly in that state. When a debtor, unwilling or unable to pay his debts, is proceeded against in a certain way (by original, the phrase is—do not attempt to understand it,) he is converted into an outlaw. The property, instead of being given to his creditors, is given (that is, is said to be given) to the king. A whole host of official men fasten upon it, like crows upon a carcase: the creditors, and after them the debtor, get the bones.a As to the official and other learned members of the legal partnership,—instead of getting the whole, as under the arrangement temp. Hen. VI., they do but come in pari passu. So far there is an improvement.—On the other hand, what they devour, they digest at their ease, under the shade of law. No parliament, to say, such things shall not be in future.

[a ]Tidd.