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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.

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.

Of the production of evidence, pecuniary expense is an ordinary vexation,—in some shape or other, in some degree or other, an inseparable, consequence. To warrant the production of any lot of evidence, the necessity of it to some one of the other purposes of justice (ultimate decision, when due, on the plaintiff’s side, ultimate decision, when due, on the defendant’s side) is an indispensable condition. A lot of evidence is proposed to be produced. The advantage proposed from the production,—is it imaginary?—is it outweighed by the inconvenience? In either case, exclusion is the result.

The cases, then, in which exclusion may be proper, may be distributed under two grand heads:—

I. To the first head may be referred, those in which no mischief at all can result from the exclusion.

If this be the case, it must be either—1. because the suit itself is of such a nature that no good can come from it; or, 2. because, though the part taken by the party by whom the evidence is called for be necessary to justice, the evidence in question is not necessary to his making it good. The plaintiff being in the right, the evidence is not necessary to the establishment of his demand; or, the defendant being in the right, the evidence in question is not necessary to his defence—to the saving him from that burden which the demand seeks to throw upon him.

To the first of the two divisions belong all those cases in which obtainment of the information sought for, is sought for, not in the character of a means, but in the character of an end: where, instead of calling for the evidence for the purpose of the suit, the suit itself is instituted for no other purpose than that of coming at the evidence: coming at the information wanted, by demanding it and employing the hand of the judge to extract it by force of law, in the character of evidence. The suit in this case is what has been called a feigned suit, or might better be called a sham or fraudulent suit; for the suit itself is real, though the object of it be disguised.

On this occasion, however, if the exclusion be to be justified, it must be understood that the party (say the plaintiff) has no right, on any score, to the information called for by him on the score of evidence: which is as much as to say, that he could not have obtained it by a suit professedly directed to that end. For if, having a right to it, he obtains it like a corollary in mathematics, in the form of evidence called for on the occasion of another suit, so much the better: the business of two suits is done in one: two birds are killed with one stone. If, in prosecuting for one crime or one wrong, you get evidence that enables you to punish, or compel satisfaction, as for another, so much the better: out of two lots of vexation, expense, and delay, one is saved.

Thus to the man of reason: not so to the man of law. To him it will be downright cheating—cheating him out of that part of the expense which becomes profit in his hands. If, of the evidence which the case affords, there be any material part behind, there wants no other ground for postponing the decision, though the suit be a single one. But if, of the mass of evidence sufficient for warranting a dozen decisions, in allowance or disallowance of so many different demands, the whole be brought forth on the occasion of one demand,—the controversy is as ripe for the dozen decisions in this case, as for the single decision in the other. But this sort of arithmetic does not accord with the books of the man of law. The ends of justice only are served by it : the ends of judicature are sacrificed by it.

To the other division belong all those cases in which, howsoever it happens, the information tendered or called for in the character of evidence, is not necessary to justice: it is irrelevant, or, though relevant, useless, because there is enough without it, whether from a different source, or of a better kind from the same source; or whether there be enough without it or no, it is still useless, because sure to be refuted or outweighed by other evidence.*

In all these cases, as in the former, if the evidence in question were produced, the vexation, expense, and delay, attendant on the production of it, would be so much pure mischief, unpaid for by any advantage. There is more or less to put in one scale; there is nothing to put in the other.

II. Thus much for the first principal head. To the other, belong all the cases in which there is more or less to put in each of the two scales: in the one, the mischief from the exclusion of the evidence (a mischief, in the composition of which, misdecision, or the danger of it, will in general be either the chief or the sole ingredient:) in the other, the mischief from the admission of the evidence; a mischief which resolves itself into vexation, expense, and delay, jointly or separately, as already so often mentioned.

In all these cases, we may see work, more or less, for the judge: for the legislator, none: at least if, in the drawing of his first lines, he has wrought with a skilful hand. In every instance there is a question of fact to be tried; in no instance need there be, ought there to be, any question of law. Understand, any new question of law, created by the arrangements here proposed to be made, relative to exclusion and admission: for the question, whether a man has a right to the information on any other score than that of evidence (evidence in relation to a different suit,) is indeed professedly a question of law, but a question supposed to have been already settled, on its proper grounds.

I. First grand and proper head of objection to the admission of the proposed evidence. The information is not really wanted as evidence, and is such as the party has no right to on any other score. Or, though called for under the notion of its serving as evidence, it is not capable of being of any use.

Questions for the consideration of the judge:—

1. Has the party a right to call for the information in question, by a suit on purpose, having that object and no other? A question of law; but supposed to be already settled.

2. The evidence proposed for delivery, is it necessary to justice? Is it relevant? Is either party in want of it? To either party is it capable of being of use? Questions which are, all of them, questions of fact: questions upon which no light can be thrown by reference to rules of law, deduced or deducible from anything that has been done in any preceding cause.

If the answer to these several questions be in the negative, there is no account to be taken of vexation, expense, and delay. To some amount, inconvenience in all these shapes cannot but be attendant on the production of the evidence: but, as to the quantum, it is needless to inquire, since, for the purpose of the exclusion, there is sure to be enough; there is nothing to set against it.

II. Second and last grand and proper head of objection to the admission of the proposed evidence. The delivery of it is attended with collateral inconvenience, in the shape of vexation, expense, and delay, to an amount greater than the advantage derivable from the admission of it; that is, than the mischief, in the shape of danger of misdecision, attendant on the exclusion of it.

Questions for the consideration of the judge:—

1. Amount of the mischief of misdecision (or, what comes to the same thing, failure of justice for want of decision.) This depends upon the nature and importance of the cause: its nature, whether criminal or non-criminal; its importance,—if criminal, measured, on the side of the public, by the magnitude of the mischief—on the side of the defendant, by the magnitude of the punishment: if non-criminal, measured on both sides by the value of the benefit and burthen at stake, taking into account the circumstances influencing sensibility on both sides.* This will be at any rate a question of fact, including or not including questions of law, according as the legislator has done or left undone, done well or ill, the duty of giving a complete catalogue and set of definitions of the several crimes, with their respective punishments, of the several sorts of rights, with the several modes of satisfaction attached to infringement in each case. But, be there ever so much of law, it will be a sort of law the demand for which is to be set down to other accounts, and not to this.

2. Amount of the danger of misdecision; i. e. of the probability of misdecision, considered as liable to result from the exclusion proposed to be put upon the evidence: this will at any rate be a pure question of fact.

Under each of these several heads, five propositions have presented themselves as true:—

1. That, on each of the grounds indicated by these heads, cases may arise in which, whatever mischief may result from exclusion, a greater mischief may arise from non-exclusion: a mischief, viz. in the shape of the vexation, expense, and delay, to which, separately or in conjunction, it may happen to be inseparable from the admission of the evidence.

2. That, between the cases in which the quantities on the one side are the greater, and the cases in which the quantities on the other side are the greater, the separation is not in general (if indeed in any instance) so clear, as to be capable of serving with advantage as a foundation for any general rules.

3. That therefore it is in all these cases incumbent on the legislative authority to leave, or rather to place, in the hands of the judicial, such a latitude of discretionary power, as shall enable it to form the estimate on both sides, and thence to draw the balance in each individual instance, on the occasion of each individual suit.

4. That, inasmuch as on these grounds general rules cannot to any good purpose be laid down in the way of statute law, by the legislature itself—by the only authority avowedly and directly competent, at any given point of time, and of its own motion, and by its own authority, to lay down general rules,—much less can any such rules be laid down, to any good purpose, in the way of jurisprudential law, by a man exercising, under the mask of the judge, the authority of the legislator; professing obedience, when he is exercising power; pretending to find ready-made—made already by an imaginary being, the law, the very law which he himself is making at the time.

5. That, to obviate this propensity to do by bad means that which on this occasion ought not to be done by any even the best means, the legislator ought not to content himself, on this occasion, either with simply abstaining from tying up the hands of the judge, or even with committing to his hands the requisite latitude of discretion in express terms; but that it will be further necessary expressly to declare, that in no instance shall the judge, on forming his decision for the admission or exclusion of the evidence in that individual cause, make or admit of any reference to what may have been done by any other judge, or even by himself, in any preceding cause: any more than a jury does, in giving damages for a trespass against person or goods: for that, in these cases, the path of precedent is the path of constant error.

Of the absence of the discretionary power here contended for, what is the consequence? That the chances against right decision will be all along as infinity to one; in a word, that the decision pronounced will be almost always wrong and mischievous. The ground of decision in each case will be, not the circumstances of that individual case, not the proportions between the quantities in that case, but the circumstances of, the proportions between, the quantities in some other case: some other case, in which they have but one chance against an infinity of chances for not being different from what they are in the case in hand.

In a word, in a case of this description, the looking to precedent for a rule would be exactly as incongruous and mischievous as if, on an account between A and B, the balance were to be deduced, not from a comparison of the sum of the items on one side with the sum of the items on the other, but by copying the balance of a former account, in which the items, as well as the persons, were all different: an account between C and D.

In other words, and those more familiar to English ears, the question as between admission of the evidence on one hand, and exclusion on the ground of vexation, expense, and delay (jointly or separately,) on the other, ought in every instance to be treated as a question of fact, in no instance as a question of law: and accordingly it should be the special care of the legislator, by apt prohibitory words, to make sure, as far as it depends upon him, that no question of law shall ever be made of it.

CHAPTER II.

EXCLUSION ON THE GROUND OF VEXATION, IN WHAT CASES PROPER.

§ 1.

Modifications of which vexation, considered as a ground for excluding evidence, is susceptible.

The idea of vexation, judicial vexation, is a most extensive one: punishment itself—punishment in all its modifications—is but a modification of it.

Vexation is evil, any evil, produced by the hand of law: if with a direct intention (ultimate or not ultimate) the evil comes under the name of punishment: if not with a direct intention, whether with or without an indirect intention (which is as much as to say, with or without a prospect of this result, in the character of a consequence of the act of power exercised,) it then comes under the notion, not of punishment, but of vexation.

From the acts done, with or without necessity, in a course of judicial procedure; and in particular from the acts done for the purpose of the obtainment and delivery of evidence,—vexation (it will be seen) is liable to be produced in the breasts of persons of various descriptions, implicated habitually or occasionally in the juridical transactions:—1. Parties; 2. Witnesses; 3. Third persons; 4. The public at large; 5. Professional lawyers, in the character of assistants to the parties; 6. Judges, and the official lawyers under them.

As to the vexation considered as liable to fall upon the parties in the mere character of parties, it belongs not to the present purpose. But a party, whether at his own instance, or at that of an adversary or a co-party, is liable to be received in the character of a witness: received to give information relative to the matters of fact in question, just as it might happen to an extraneous witness to do. It is in this quality, and this alone, that any vexation to which it may happen to him to stand exposed, is to the purpose here.

I. Of vexation by reason of attendance, the evil will not, in a direct way, naturally fall on any other person than the proposed witness.

In the character of a ground of exclusion, it therefore has no place, if, notwithstanding the vexation, the proposed witness, by his own consent freely and fairly obtained, delivers, or is ready to deliver, such his testimony.

No more has it, in the opinion of the judge, if a compensation, such as in the opinion of the judge is an adequate one, be tendered to him: and in this case there is nothing which should render the compensation incapable of being rightly estimated, more than in a multitude of other cases in which such estimation is performed in every day’s practice.

In a remote way, it may however happen that the evil of vexation by reason of attendance shall fall on persons other than the proposed witness.

One example is, when, in consequence of the evidence of the proposed witness, it becomes necessary to the party against whom such evidence makes, to oppose it by counter-evidence, such as otherwise would not have been produced. In this case, to any vexation pressing on the proposed witness, must be added the vexation attached to the delivery of such counter-evidence: which vexation (it being supposed to be of that sort which attaches on attendance) will, if uncompensated, rest on the shoulders of the counter-witness; if compensated (viz. at the expense of the counter-party,) upon those of the counter-party at whose expense it is compensated.

Another possible example is this:—Over and above any vexation pressing upon the proposed attendant witness himself by reason of his attendance, some vexation (some positive loss, for example, or loss of an opportunity of gain) may befall some third person, by reason of some connexion which his interest has with the attendance of the proposed witness at another place. An inconvenience of this sort will, to the extent of it, form as substantial an objection to the delivery of the evidence, as if the proposed witness were himself the individual suffering under it. But, in this case, the difficulty of proof, where the mischief exists, will naturally be more considerable; as likewise the danger of deception by fallacious evidence, where the evil has no real existence.

In a mass of vexation produced by reason of attendance, four branches will in almost every instance be distinguishable: four branches, producible respectively by the four following causes:—

1. Journey out, to the seat of judicature; viz. from the spot or spots at which, had it not been for the obligation of the attendance, the witness would, during the length of time consumed by the attendance, have been stationed. Of this branch of the vexation, the weight is of course variable ad infinitum,—having no other limits than those of the globe of the earth itself. Where the distance is considerable, this branch of the vexation will naturally be accompanied with the obligation of pecuniary disbursement: of which elsewhere, under the separate head of expense.

2. Attendance in court (i. e. in the presence of the judge by whom the evidence is received) during, or for the purpose of, the delivery of the evidence. If, the witness being sick in bed, the judge, for the purpose of receiving his testimony, visits him at his bed-side, his chamber becomes thereby, to this purpose, a court of justice.

3. Demurrage. Attendance in the neighbourhood of the court, for a length of time frequently uncertain—hours, days, or even weeks—that he may be in readiness to pay his attendance in court, when the time comes for the delivery of his evidence.

4. Journey home, or from the seat of judicature; viz. to the spot which, had it not been for the fulfilling of the obligation thus imposed on him, he would at that time have occupied.

II. Vexation by reason of disclosure, may fall to the charge of any person or persons to whom it may happen to sustain inconvenience in any shape from the disclosure of any matter of fact capable of being disclosed by delivery of evidence; which is as much as to say, any sort of fact whatsoever.

These persons may be—1. The proposed witness himself, or persons specially connected with him, whether in the way of self-regarding interest, or of sympathy; 2. Other individuals at large; 3. The public at large: including the members of the governing body, considered in respect of such their public capacity.

For the different shapes in which vexation, in the case of an individual (the proposed witness, or any other,) may assume, look to the shapes in which injury may display itself, corresponding to the possessions in respect to which injury may befall him; viz. person, property, reputation, condition in life.*

Facts, from the disclosure of which it may happen to the public at large, or to government, in respect of the public interest, to receive harm, may be comprised under the general denomination of state secrets.†

For the respects in which it may happen to the public at large to experience vexation from this source, consult the catalogue of public offences.‡

In respect of that branch of the vexation by reason of attendance which consists of attendance in court, the witness has as many co-sufferers as there are persons of other descriptions on whom the same duty is imposed: the aggregate mass increases, consequently, with the number of these persons.

Among these persons must be distinguished—1. The professional assistants so attending for the several parties; 2. The judge or judges so attending, with his or their official subordinates.

§ 2.

Vexation to the witness, or to persons at large, in so far as affected by his testimony, how far a proper ground of exclusion.

Where the vexation, in all shapes taken together, that would result from the delivery of the evidence in question, constitutes a greater evil than the evil that would result for want of the evidence, the evidence in question ought not to be delivered. In the opposite case, it ought to be delivered, and if not about to be delivered without compulsion, compelled.

To determine the preponderance, as between the evil (the vexation) by delivery of the evidence, and the evil (unjustice or danger of injustice) for want of the evidence, belongs of course to the legislator: in so far as, in the situation in which he acts, it lies within his power to make such an estimate as shall prove a just one in all individual cases. Optimus legislator qui minimum judici relinquit.

In so far as it lies not within the power of the legislator to form any such estimate, he ought to invest the judge with the power of forming an estimate for that purpose in each individual case.

So little can be done in this way with propriety by general rules, that the first and fundamental rule should be that which gives the requisite latitude of power to the judge: in relation to which, the limitations, if any, which it may be thought proper to apply to that power (i. e. where the legislator thinks fit to take the determination upon himself,) will come in afterwards as exceptions.

If the suit itself is instituted for no other purpose than that of procuring the disclosure (the disclosure not being intended to be made use of as evidence in any other suit,) there is not, in fact, any demand for the disclosure in the character of evidence. There is no real suit, at least no justly-grounded suit, for the purpose of which the disclosure is called for, to any such intent as that of its serving in the way of evidence. The suit is a feigned suit; an attempt to impose unlawful compulsion upon the witness, making the judge the instrument of it—making him lend his power in this way to a purpose to which it was not intended, either by himself or by the legislator, that it should be made subservient. In this case, the vexation, whatever it be, has no benefit to weigh against it in the scale—no such benefit, as the power of the law, applied in the way of judicial procedure, was intended to produce.

Let the compulsory process which the judge has the power of applying to a proposed witness for the extraction of his testimony, be the sort of torture applied to produce the pretence of unanimity in an English petty jury; viz. keeping him in a state of imprisonment, without meat or drink, and so forth. Let the fact, the disclosure of which is thus endeavoured to be obtained, be a secret in trade: understood or not understood in that character by the proposed witness; possessed by some other person, a manufacturer, and constituting his only source, and that an ample source, of livelihood. Were the disclosure compelled, and compelled by this means, here would be two persons, with a distinct injury inflicted upon each: on the manufacturer, wrongful interception of pecuniary gain, equivalent to wrongful imposition of pecuniary loss; on the witness, unlawful compulsion, by fear of corporally afflictive imprisonment. Just as if the plaintiff had got the witness into a room, and there kept him locked up without food and so forth, till he discovered what was wanted.

Such would be the consequence, if in lending his sanction to contracts (thereby adopting them, and converting them into so many particular laws,) the legislator were to include wagers; omitting to make an exception in respect of wagers having for their object the giving effect and impunity to the sort of injury just above described.

Two leading cautions present themselves as proper to be submitted to the legislator: the first tending to enlarge the sphere of exclusion on this ground—the other to contract it.

I. Fancy not, that, by the regard due to justice, you are bound to lay down any such unlimited rule, as that, on every occasion, every man has a right to the testimony of every other man, without regard to consequences. Fiat justitia, ruat cælum, might lead you to this, if, as they are but too apt to be, the flourishes of orators were to be taken for inviolable rules.

Observe one consequence: all secrets then are at an end. From all those weaknesses, the mischief of which results rather from divulgation than from commission, malignity or idle curiosity tears the veil: the absolutely immaculate, if such there be in the world, excepted, all reputation is at an end. All that ill-humour, which, had it not been dragged forth into the light and air, would, like embers under ashes, have died away in the bosom in which it was kindled—died away without further consequences,—all this magazine of malignant combustibles, being dragged forth into the light, blazes out and kindles into quarrels.

From this source of unfathomable mischief, states are no more secure than individuals. All cabinets, all war-offices, are laid open: the most vulnerable part of each weaker state laid open to each stronger state which, whether in a state of actual or only premeditated hostility, lies in wait to take advantage of it.

Mischief enough without doubt: but by what means producible? Oh, for the means, nothing can be more simple. They have been invented; they have been practised: nor yet altogether without success. Lay a wager. Would you know the sex of this or that person?* Would you know the use or the uses that he or she has made of it?† Would you know to what happy exertion of invention your too successful rival owes his present opulence?‡ Would you, for the benefit of your liberal employer on the other side of the frontier line, know in what part of it the magazines of your own state are empty, in what other quarter such as are full may be fired to most advantage?∥ Here are your means. You and an associate of yours lay a wager: one, that the matter in question lies or lay in one way; the other, that it lies or lay in the opposite way. To determine this wager, you call in as witnesses all persons whose situation and connexion have placed them in a way to know. In a word, you take in reality that sort of course which in England the lord high chancellor forces you and your adversary to say you had taken (though it is no such thing) on pain of seeing justice denied to that one of you to whom it is due.

II. The opposite caution will not require many more words.

On the score of vexation, do not set down on the side of mischief (unless on the side of advantage you set down a sum much greater,) the certain or contingent result from any disclosure by which it may happen to the witness, or anybody else, to be subjected (whether in the way of satisfaction or even of punishment) to any legal obligation: or (what is the same thing in other words) by which the law may come to receive its execution: by which the predictions and engagements taken by the substantive branch of the law, may come to be fulfilled.

Be the amount what it may, all such vexation is overbalanced. An assumption to that effect must in every case be made. If the vexation be not overbalanced, the fault lies in the substantive branch of the law: in that part of the law by which the obligation is imposed: it is to that branch of the law, and that alone, that the remedy should be applied. The prediction made by the substantive branch of the law should be recalled, not disfulfilled; the engagement taken by it dissolved, and violated.

To establish as a sufficient reason for the exclusion of the evidence, any vexation liable to result from it in this shape, is exactly as unreasonable as in an account current it would be to set down on either side a debt already paid and overpaid.

The tendency of the evidence, is it to cause some other debt to be paid, which otherwise might not have been paid, or of which payment might not otherwise be obtained so cheaply or so speedily? So much the better. Is it to cause some other offence to be punished, which otherwise might never have been punished, or not so cheaply or so soon? So much the better. In both cases, justice is done in two causes, at the expense of one.

Upon the whole, then, let it be understood that, whenever the vexation that might be produced by the delivery or receipt of the evidence in question is stated as affording an adequate reason for the exclusion of it (i. e. as outweighing the mischief that would result from the exclusion of it,—viz. the misdecision,) the vexation must be understood to be pure, and not having any such counterbalance to it as above-mentioned.

Yet it is in the case where it is thus overbalanced, that English lawyers make it a matter of pride and glory to carry it to account. On the other hand, where it has nothing at all to balance it, how often shall we not see it left out of the account altogether, as if no such mischief were produced.

Take for a feigned case, one that till the other day was in part a true one. A catholic priest, saying mass—that is, discharging the indisputable duties of his office—in England, is liable to be hanged.* Delivering his testimony on a dispute about an affair of a few shillings, in which he has no concern, questions are put to him, the answers to which, if true, will, with a force sufficient for conviction, prove him to have committed the act thus convected into a crime. The vexation that would thus befall him, does it constitute a sufficient reason for stopping the mouth either of the witness or his examiner? By no means. The law which attaches this penalty to the performance of that religious duty, so long as it continues on the statute-book, must, to this as well as every other purpose, be taken for a good law; and fit and proper to be executed, as well upon the ground of this as of any other evidence. The law shall be as bad a one as it pleases the reader to suppose it. But in whose mouth does it lie to call it so, and to seek to defeat it in this way? In the mouth of the legislator? But in his hands is the power of doing away the mischief of the law, not only in this chance and solitary instance, but in all instances, and for ever. How inconsistent and absurd, to do away the mischief in retail, and, in the very self-same shape, leave it to remain in gross! In the mouth of the legislator? He contradicts himself. In the mouth of the judge? He contradicts the legislator, usurps his power, puts himself into his place.

Suppose that—instead of applying the remedy to the really peccant part, the substantive branch of the law—the legislator were to be inconsistent enough to determine upon applying it, and in the way here in question, to the adjective branch,—applying it in the shape of an evidence-excluding rule. What shall be the extent of the rule? Particular, or general? Shall it be particular, and stand thus:—A catholic priest, if called in as a witness in a cause in which he is not a party, shall not be compelled to make answer to any questions, the answers to which, if true, would prove him to be such? By the supposition, this persecution ought to be abolished: what does the rule towards the abolition of it?

Shall the exclusion, though made to no other end than that of serving as a remedy against the particular sort of tyranny here in question, be general? and accordingly, instead of a catholic priest, shall it say a person? and instead of the words to be such, say, to have been guilty of any offence? What a price would here be paid for the benefit of this remedy! The whole fabric of the law weakened, with all the securities that rest upon it; and the protection to the innocent religionist no better on this plan than on the foregoing one.

Instead of being the work of the legislature, suppose the extension to be the work of the judicial authority; on the occasion of some individual suit, the judge finding or making a pretence for stopping the disclosures, by an individual decision made on the occasion of that individual suit; and on the next occasion of the like kind another judge making, either out of the decision itself, or out of something of a general nature supposed to have been said on that individual occasion, a general rule. Of the additional mischief, intimation has just been given. Insubordination, contempt, usurpation; the confidence of the subject in the legislator shaken; disobedience preached by example—by the example of those whose employment, profession, and peculiar duty it is, to exact obedience from everybody else.†

To the vexation attached, as above, to the delivery of the testimony, when the will, the intention, to deliver it, has been formed, must be added for consideration the vexation that may come to be attached to the coercive arrangements which it may be necessary to take for the purpose of causing the will, the intention, to be formed. To this head belong, in the case of personal evidence, search for the person of the proposed witness: entry, with or without force, into the house, land, ship, or other receptacle, for that purpose: arrestation, detinue, conveyance, commitment, alimentation. In the case of real and written evidence,—entry as before; search as before; examination, seizure; detinue, conveyance; and in some cases, where the source of evidence is a living animal, alimentation, as before. In the case of written evidence, examination of books and papers, making of transcripts, extracts, translations, abstracts.

In regard to vexation of this casual and multifarious description, two propositions present themselves as expressive of the line of propriety on this ground.

1. In forming a comparative estimate, as between the mischief of admission and the mischief of exclusion, for the purpose of determining whether the evidence shall be received or excluded,—so much of the vexation (in whatsoever shape or shapes it presents itself) ought to be taken into account, as will take place notwithstanding any inclination on the part of the witness (including, in case of real or written evidence, the person on whom the production of the source of evidence depends) to yield the evidence.

2. But in this account no vexation ought to be included, the necessity for which is produced by the repugnance of the proposed witness. He himself being the author of it, be it ever so heavy, the weight of it can afford no just reason for depriving the party of the benefit of the evidence—of the legal service which is his due.

As to the provision which it may be necessary and proper to make for the forthcomingness of the evidence, considered under its several modifications, as above, and in the several cases of difficulty that may arise,—it belongs rather to the subject of procedure at large, than to the subject of evidence. The field would be much too wide a one to be inclosed within the limits of the subject now in hand.

On this part of the ground, the utmost that can be done is to give principles. Propositions fit to appear in terminis, though it were not in the character of laws, but of mere instructions, could not be given without giving also in terminis the laws (substantive as well as adjective) in modification of which they would have to operate.

§ 3.

Vexation to the judge, or to any of his subordinates, how far a proper ground of exclusion.

The sort of vexation here in question is that and that alone, against which the exclusion of this or that mass of evidence is capable of operating as a remedy. The vexation will therefore be of that sort, and that sort only, which is producible by excess in respect of the quantity of evidence which it has been made incumbent on him to receive, and turn in his thoughts, to serve as a ground for the decision he is called upon to pronounce: in a word, vexation having excess of evidence for its cause.

Flowing from this source, vexation to the judge has a claim to regard on a double account:—1. In respect of the feelings of the individual; and 2. In respect of the consequence of it to the cause.

On his own account, and looking no further, the feelings of the judge have exactly the same claim, neither stronger nor weaker, to be considered, as those of any other individual in the state.

Considering the matter in this single and abstract point of view, it may seem difficult to comprehend how it should happen that, if the evidence in question be material, a lot of vexation thus narrow in extent should ever swell to such a pitch as to form a ground sufficient in point of reason and utility for the exclusion of it.

Difficult, yes; but not impossible: especially under English law; especially considering among how large a number of persons it may happen to the judicial power to be shared; say a dozen occasional judges (jurymen,) and one permanent one, with from two or three to half-a-dozen or more subordinate judicial officers. These jurymen have all been shut up together for twenty-four hours, a case that has sometimes happened: value at stake, perhaps a hundred thousand pounds—perhaps not a hundreth part as many pence.

But (besides that, in this sense of the word material, there are degrees of materiality) what may happen is, that the information proffered in the character of evidence may be irrelevant altogether; of which case afterwards. In this case there can be no difficulty.

The service of the judge is in some instances voluntary, in others compulsory. If voluntary, he derives from the office, in some shape or other, what in his own judgment (which is the only competent one) is a sufficient recompense. But even in this case, vexation, labour, attendance, should not be imposed upon him to no use: much less where the service is compulsory, as in the case of juries, and several other cases.*

What applies, as above, to the principal, applies, and for the same reason, to all subordinates.

But in this way, when the quantity of the vexation swells to a certain pitch, the connexion is most intimate between the personal interest of the judge, and the interest of the public at large, through the medium of the parties, or rather of such one of them as happens to have right on his side.

From an overload of evidence, comes perperplexity: from perplexity, misdecision: if the perplexity be at its maximum, an even chance of it. Probably in every system, certainly under the English, the instances have been but too numerous, in which (not to say misdecision) decision which to many impartial minds has presented itself as erroneous, has been traced up to this source.*

When the hearing of a cause has been drawn out to a length regarded as excessive, the principal matter and cause of the excess has generally consisted of the evidence.†

In causes of certain descriptions, to such a pitch has the mischief swelled, as to be regarded as a subject of general horror to persons whose situation in the state has threatened them with this species of forced service.‡

Much, in this case, will depend upon the modification given in respect of time to this species of service: whether de die in diem (with or without intervals of repose,) or the whole to be executed within the compass of one sitting, and thence, occasionally, towards the close of it, in a state of imprisonment and slow torture.

The personal suffering of the judge is not much in danger of passing unheeded, nor even unremedied, by the judge: at least by such person or persons on whom, in that commanding station, the duration of each attendance depends. Nor yet has it the less claim to the legislator’s care: since to whatever relief it happens to be assumed or granted in these cases by the subordinate, without the observation of the superior, it may happen to be either insufficient or excessive.

But under the system of payment by fees (that is, under the regular part of the existing system of procedure in most countries,) vexation to the judge is apt to have an ulterior and much more important claim to notice. Under this system, vexation to judges and their subordinates is expense to suitors: changing its shape, it transfers its seat at the same time to other shoulders. The quantity given, on what individual it falls, is to the public (that is, to the aggregate composed of all individuals) a matter of indifference. The misfortune is, that, when the seat and shape of vexation is thus changed, the quantity of it tends to increase with a velocity plainly infinite. In this tendency, the final cause of the technical system has already been brought to view. On these terms, vexation, instead of being shrunk from, is courted: the crown of martyrdom graces the peruke of the judge.

Men of the class of professional lawyers (assistants to the parties) being, under all their varieties and sub-varieties, men,—vexation weighs as heavy on their shoulders as on any other.

But vexation to the lawyer is expense to the suitor. Under the fee system, this transformation is undergone by that portion of the vexation which in the first instance alights on the shoulders of the judge: under every system, by that portion which alights upon the shoulders of the professional lawyer, the frequently indispensable and naturally treacherous assistant of the parties. But, under the fee system, the two avalanches, being connected from the first, roll on and accumulate together: pursuing the same object, co-operating, without any need of concert, from the beginning of the game to the end, the lawyers of both classes keep playing into each other’s hands. At the card-table, signs and tokens are necessary between the ostensible partners and the latent ones behind their backs: no such dangerous intercourse is necessary amongst the partners in the lottery of procedure.

Under any system of payment, pecuniary or non-pecuniary, by which the interest of the functionary were not placed in a state of opposition to his duty, the zeal by which the martyr to professional duty will never cease to be instigated to heap thorns upon thorns on his self-devoted head, will find a constant moderator in the probity, the honour, and the indolence of the judge: under the fee system it finds ostensible checks, of which the efficiency is destroyed, by spurs, not the less sensible for being invisible.

Such being the mischiefs of which vexation from the delivery of evidence is composed, or of which it is liable to be productive—such the mischiefs to which exclusion of the evidence presents itself as a remedy,—does not the nature of things ever admit any cheaper remedy? This will be the subject of inquiry in a separate chapter;* in which, in this point of view, the three kindred diseases, vexation, expense, and delay, all considered as attached to evidence, are considered together. In the case of these political, as in the case of physiological diseases, to find the best remedy, we must understand the causes.

§ 4.

Arrangements of English law connected with this subject.

Towards this subject what is the aspect of English law? The answer may be contained in a line or two, or require a volume. What on this ground has been done by English law? By design, nothing: but by accident, and without thought, much more than can here be brought to view.

By design, by design towards such an end, how should anything have been done? On this subject, had anything been done, it would have belonged to the system of procedure: and, except here and there in patches, the system of procedure has never been the work of the legislator. What has been done, has been the work of the judicial authority. But to avert vexation is one of the ends of justice; and the ends of judicature, instead of coinciding, have been at variance with those ends. Vexation is inseparably connected with expense: and the ends of judicature have been, not to save, but (for the sake, and in proportion to the amount, of the profit obtainable from it) to embrace every occasion for the augmentation of, expense.

Under the head, for example, of vexation to individuals (whether strangers or parties) in the character of witnesses,—ordinary vexation, in respect of journeys to and from, attendance and demurrage: what on this head has been done?

By design, as already observed, nothing: by accident, more or less:—here one thing, there another.

What in this way has been done at all, has been done by the limits, the topographical limits, that have taken place in regard to fields of judicature. But, in the tracing out these limits, nothing of design has had any share: boundaries have formed themselves here, as boundaries formed themselves after the deluge: as shores grew up against seas. May it happen to a man to have so many hundred miles to travel for the delivery of his evidence, or only so many miles? It depends upon the local jurisdiction of the court: and thence upon the court in which the cause originated, or in which it is to be tried. Did it originate in Westminister Hall, three hundred and upwards may be the number of miles. In a court of quarter-sessions, for the county of Rutland for example, not so many as twenty miles.

Three hundred and upwards, or only twenty,—if the delivery of the evidence be altogether free as well as voluntary, there is no vexation in the case: if obligatory, then it is that vexation mixes with it. Delivery of testimony, is it obligatory? Yes and no: yes in a hundred cases; no in a hundred others. To give a picture of the law on this one head, that is, of the clouds of uncertainty in which it is involved, would require a volume. 1. In causes non-criminal, obligatory at one stage, unobligatory at another: obligatory if the persons capable of yielding testimony are known; unobligatory for want of their being known. 2. In criminal causes;—in felonies, obligatory: obligatory as well at the first stage as afterwards. 3. In misdemeanours, if prosecuted by indictment;—obligatory, if known, and living within the jurisdiction of the court (unless, to avoid the vexation, their device be to travel a few miles, or as many steps, to escape from it;) unobligatory, for want of their being known, unless some justice of the peace, under the spur of that zeal which has become a monopoly in the hands of unlearned judges, acting by custom, without (which is as much as to say against) law, has, by the terrors of undefined and uncognizable authority, contrived to wring the secret from the reluctant breast. 4. In the same misdemeanours, if prosecuted by information—but here, however abruptly, the theme must end. 5. Then again comes the Tweed. Think you that a judge, standing on one side of that river, speaking to a witness on the other, could command his evidence? No more than if it were the Styx.* 6. Is it, again, for plaintiff, or for defendant, that a man’s testimony is needed? Here comes another ocean of distinctions and deficiences. Fancy not, that because a man’s evidence is necessary to save your life from unjust punishment, you can have (unless it be here and there by accident) any better security for it than that humanity, which, if it be to be found in individual bosoms, is not to be found in the bosom of the law.†

The best method of supplying all these deficiences, belongs to the science of judicial procedure at large. In the existing system, how was it possible they should have been supplied? To have supplied them, the objects of its regard must have been the ends of justice.

On the score of the vexation of which the disclosure would be productive to the individual whose condition in life was the subject of inquiry,—the party calling for the disclosure having no other interest in it than what he had taken upon himself to give to himself by laying a wager, and when consequently there is no gain to justice, to out weigh the vexation thus produced,—the court of King’s Bench, with indisputable propriety, forbade the extraction of the evidence.

On the score of vexation to the public at large, by the disclosure of facts comprisable under the denomination of secrets of state, no decision appears to have been ever pronounced. Why? Because no known case ever presented itself, in which a decision to that effect was called for on that ground. In this instance, as in every other, it depends upon chance to open the mouth of jurisprudence.‡

In both houses of parliament, exclusions are, in every day’s practice, put, on this ground, upon communications that otherwise would be made.

Where the vexation in question is outweighed, outweighed by the profit to justice attendant on the execution given to some article or other of the substantive branch of the law; in this case, the exclusion put upon evidence, the allowance given to the plea of vexation in the character of a ground or justificative cause of such exclusion, will be found under the head of cases where exclusion on the score of vexation is improper, and the allowance ranked among the errors by which English jurisprudence is defiled.

CHAPTER III.

EXCLUSION ON THE GROUND OF EXPENSE, IN WHAT CASES PROPER.

Of the category of expense, though the mischief of it be but a modification of that of vexation, a separate consideration requires to be made.

There are but two cases in which expense, expense attendant on the delivery of evidence, is capable of forming a rational and legitimate ground for the exclusion of that same evidence.

One is, the case in which, not being defrayed by the party by whom it is called for, it must, if delivered at all (which is as much as to say not excluded,) fall without compensation upon some third person. The other is, where, though it were to fall upon that one of the parties who is in the wrong, the quantity of vexation attendant on it in his instance would be too great to be defensible on the score of punishment.

In each of these cases, supposing them really exemplified, the propriety of the exclusion presents itself as unquestionable.

The load of rubbish has been improperly deposited as before. Penalty five shillings. For the mere purpose of levying this penalty, would you put an innocent bystander to an expense of two voyages between London and the East Indies? would you even subject the delinquent himself to any such expense?

All reason, therefore, for exclusion on the ground of expense is taken away—all reason and all pretence, when any person, who conceives himself to have need of the evidence, takes upon himself the expense.

But evidence, and evidence the delivery of which would be attended with considerable expense, exists on both sides. On one side, there exists ability as well as desire to defray the expense of his own evidence: on the other side, there exists inclination only, ability not. What in this case is to be done?

The knot is a Gordian one: what presents itself as capable of being done towards untying or cutting it, will be found under another head.*

Expense is to be considered at two periods: 1. When the disbursement is to be made, or at any rate undertaken for; 2. At the conclusion of the cause, when the time comes for definitive justice to be done.

Even though, in the rubbish case, the expense of fetching over the witness from the East Indies should have been defrayed by the plaintiff in the first instance, would you, in case of conviction, saddle the defendant, guilty as he is, with the burthen of reimbursing this expense? No, verily, if guided by the rules of humanity and rational justice: Yes, if guided by principles such as those of English law. Whether a man shall have his costs or not—whether the party who prevails shall receive reimbursement at the expense of the loser, depends upon a thousand capricious and inconsistent rules: but it is only in here and there an instance, that this rembursement is refused on the ground of the excess of the burthen imposed on the loser, in comparison with the value of the benefit pursued.

It remains to bring to view what has been done by English law under this head.

As it is with vexation at large, so is it with that particular modification of it which is produced by forced expense. By the same causes, by the same accidents, by which bounds have been set to the vexation by reason of attendance, bounds are also set to the expense: I speak of the expense of journeys to and from, and demurrage in the neighbourhood of, the seat of judicature: items which, when added to the fees of the persons employed in the collection of the evidence, compose in general, wherever the evidence is delivered vivâ voce, the whole, or nearly the whole, of the expense attending it.

By these bounds—the bounds by which the territorial field of jurisdiction of the court stands limited—limits are thus far set to the expense to which the party or any other person shall be subjected by reason of the expense of the journey, in the instance of any one witness. From beyond these bounds, no man can for that purpose be obliged to come: and therefore, unless by the consent of a willing witness, no mass of expense exceeding the expense of such longest journey, can be imposed upon any one who is not disposed to bear it. Every witness, and thence the testimony of every witness, who, were his testimony to be delivered, would have to come from the greater distance, stands negatively excluded; i. e. it is not compellable.

Thus much then is done, is actually done, though without design, in English law (viz. by general arrangements,) towards the limitation of the expense of evidence.

But in no instance is any exclusion put upon a lot of evidence, on the mere ground of the inordinateness of expense; understand, of the mass of expense of which the delivery of the evidence would be productive in that individual cause.

In the first instance, each party bears of course the burthen of that part of the aggregate mass of expense which consists in the money disbursed by himself, on the occasion of whatever steps he takes in the institution and prosecution of his own claim—(claim, on the part of the plaintiff, to see the obligation imposed upon the defendant—on the part of the defendant, to see himself exonerated from it.) When the cause has received its ultimate decision in any court, then comes the question, whether, by him who in that court has gained the cause, anything, and what, shall be received from the losing party, on the score of satisfaction for the disbursements made by him?

Deficiency, inconsistency, uncertainty, all at the highest pitch, are the result of those learned labours, the picture of which fills a volume of near seven hundred pages.

To a set of arrangements on such a subject, would it be possible to give the opposite qualities? In so large a compass, scarcely—in a twentieth part of it, with ease.

In regard to the plaintiff, one question is, whether he be king or no: for, if the suit he called a criminal one, the plaintiff is king, whatever else he may be. In this case, the answer is clear. Be the suit ever so unjust, and the expense which the innocent defendant has been put to in defending himself against it ever so heavy, he receives no indemnity; for the power of heaping oppression in this way on innocent men in the character of defendants, is among the king’s prerogatives. Therefore, to prove that an innocent defendant ought to be thus oppressed, you want no other postulate, than that John-a-Nokes is king: than which nothing is more easy: after which, you may write Q. E. D.

The rule is indeed scrawled over by exceptions: yet not so, but that the ground predominates.

Again. Be the delinquency of the defendant ever so enormous, the expense of prosecution ever so great, reimbursement is not to be thought of. Why not? Because, to receive money under the name of costs is “beneath the royal dignity.”* Call it costs, he disdains to receive it back, though he is so much out of pocket: that is, the law servants of the real king disdain to see either their royal master receive it, or the John-a-Nokes, who really disbursed the money, and whom they have set a strutting under the king’s name. Call it costs, he disdains receiving it, though it be a hundred pounds (it is frequently much more:) call it a fine, he is ready to pocket it, though it be a shilling: the elephant disdains the cannon, but is ready to pick up the pin. Rendered splendid by this its destination, many a shilling, bating official clipping, finds its way, and by itself, into the real and royal privy purse.†

Indications may be found to show that, in England, lawyers have had it in their heads to set bounds to the excess of vexation and expense. In their heads, at times, yes: in their hearts, scarce ever. Bounds to the excess of vexation and expense from all causes put together, natural and fictitious, yes: not to this, an article of natural expense, taken by itself.

Under the direction of lawyers, statute law has, in some instances, interposed in some such view: but how? By refusing, to the party injured, the reimbursement of his share of the costs of suit; and thereby doing much more than refusing him any redress at all for the injury, where the value of the injury is judged not to exceed a certain amount.‡ And what amount? A sum, which, if annual, would have constituted an independent provision for a parliamentary elector.

But, in this case, no separate account is taken of that part of the expense which is occasioned by the production of evidence; not to speak of what may have been occasioned by the production of this or that particular article of evidence.

In the equity courts, jurisprudential law has explained itself in the same way. For any sum below a certain amount, no redress is given in these courts. Why? Because it would be beneath their dignity. And to what amount? £10; a sum, in those days, equal at least to the expense of two years’ subsistence of an average individual of any of those classes of which nine-tenths of the body of the people are composed. Outlawry was thus pronounced upon the great body of the people. Outlawry: and to what end? To maintain the dignity of the judge! The dignity of an equity judge consists, in what? In refusing to do justice. Dignity, forsooth? What has dignity to do in this case? The fees on the less valuable, would they have been worth less than the fees to the same amount on the more valuable, cause?—would Vespasian had found them beneath his dignity? But pride, in these instances, blinded the eyes of avarice. Humanity? No such motive was so much as dreamed of.

At common law, to a cause in which it is settled that either nothing shall be given to the plaintiff, or, if anything, one shilling, a more than ordinary degree of importance is not unfrequently ascribed: and the question in dispute argued with great ceremony. So different, on the head of dignity, are the notions that prevail on the one side, and on the other side, of a twelve-foot passage.

Suppose any reason, grounded in utility, for the denial of justice in all pecuniary demands under £10, and conceive what a character you are giving of an equity suit! Think of the virulence of that disease, to which, in the judgment of the inoculators, denial of justice, and in a great majority of the cases that would otherwise have occurred, is an eligible remedy!

Along with the vexation, the expense of evidence has, in the same lumping style, undergone a remedy by exclusion, in another way; viz. by barring it out.*

CHAPTER IV.

EXCLUSION ON THE GROUND OF DELAY, IN WHAT CASES PROPER.

A lot of evidence being proposed,—the delay in question in the character of a ground of exclusion, is that which might in some cases happen to be produced by a determination to give admission to that evidence. The question for decision then is:—of the two mischiefs, the two opposite, and, as it were, rival, mischiefs and injustices, which is the greater?—the injustice attached to the misdecision or danger of misdecision that would be produced by the exclusion of the evidence? or the collateral injustice attached to the quantum of delay (of extra delay, it must here be understood) that must be incurred, if, antecedently to the decision, that quantity of time be allowed, which is understood to be necessary to the production of the evidence?

Were all the material evidence forthcoming which the case has happened to furnish, a decision might be pronounced to-morrow. But, of this existing and obtainable stock, a part, more or less material, exists at the antipodes. Shall the decision wait till a correspondence can be had with the antipodes for that purpose?

The cause having but one party on each side—the cause being, in that respect, and in that sense, a simple one,—the proposition for the exclusion, if any such proposition come at all, must come either from the party who conceives himself to stand in need of the evidence (say the plaintiff,) or from the opposite party. From the party whose wish it is to see the evidence delivered, no such proposition can come: since he has but to forbear calling for the evidence, and the exclusion thus attaches upon it silently and of course.

If, in this simple case, a demand be made for an exclusion to be put upon the evidence—a demand having for its ground the delay that would be necessary for the production of it,—it is from the opposite side (say the defendant’s) that the demand must come. For anything I know, the evidence alleged by the plaintiff to exist, may or may not exist: the effect of it, if produced, may or may not be more or less material, more or less necessary, more or less conclusive. But the case is such, that, if the decision be not passed till the requisite time has been taken for the arrival of the evidence, added to what notice may be to be taken of it, the mischief resulting to us from that delay will be greater than the mischief resulting to the plaintiff from the disallowance of his claim: at any rate, than whatever chance of such miscarriage may be the result of the non-production of that evidence.

Reverse the case, the mischief of the delay will be more sensible. It is the defendant that applies for the delay, to save the exclusion (the negative sort of exclusion) that, for want of it, would be put upon the evidence he has to produce. No, says the plaintiff;—the mischief from this delay would on my side be so great, that, in consideration of it, my petition is that the cause may go on in its natural course—that the delay prayed for may be refused: although of such refusal the sure consequence will be, that an exclusion will thus be put upon the article of evidence.

Again, let the cause be a complex one—complex in respect of its affording divers parties (say five) on a side: and first, say, on the plaintiff’s. One plaintiff applies for the delay, as necessary to the delivery of the evidence: the other plaintiff opposes the delay; in other words, applies for the exclusion, the evidence not being, in his view of the matter, worth the purchase. To the present purpose, this third case differs from the first only in name. The parties stand on the same side of the cause, but, on this point at any rate, their interests are opposite. The plaintiff, by whom the application for delay is opposed, is to this purpose, as against his co-plaintiff, a defendant.

The two quantities here compared with one another, being both of them in their nature susceptible of variation upon a scale of almost indefinite length—on the one hand the materiality, the probative force, of the evidence, on the other hand the duration of the delay; the ratio of each to the other is of course susceptible of variation upon a correspondent scale.

If, however (as will frequently be the case,) the evidence in question be indispensably necessary to warrant a decision on that side,—the mischief of mere delay, that is, mere postponement of the decision on one side of other (abstraction made of the contingent mischiefs with which it may happen to it to be pregnant, viz. on the one side deperition of the matter of satisfaction, on the other side deperition of counter evidence,) can seldom be equal to the mischief of the exclusion. From the exclusion of the evidence, results in this case, by the supposition, and that as a necessary consequence, misdecision to the prejudice of that same side: and the mischief resulting from that misdecision, perpetual and irremediable: whereas from delay, considered in respect of that part of its mischief which is certain, no worse effect ensues than the temporary duration of that same mischief, which, in case of exclusion, is perpetual.

In respect of the evidence, the supposed temporary absence of which produces the demand for the delay,—what are the expectations entertained by the plaintiff (or the defendant, if the delay be prayed for on his side;) and what the grounds of them? What assurance has he that the witness cannot now be forthcoming? that he will be forthcoming within any reasonable space of time? that he knows anything about the matter, and that what he knows will, if truly reported by him, operate to the effect alleged, and with a sufficiently persuasive force? All these questions together constitute a sort of incidental cause, collateral indeed to the principal cause, but sometimes not inferior to it in importance, because the main cause itself may altogether turn upon it. All these questions, with others that might be added, constitute a complex question—a question of fact, which, like any other question of fact, must be tried by the light of its own evidence,—of such evidence as it happens to afford: direct evidence, circumstantial evidence, the evidence of the prosecutor if necessary, the evidence of any other individual as it may happen. The witness (understand, he in whose absence the demand for delay originates) was an inmate of the owner of the goods taken in the way of theft or robbery,—he was in the house at the time: he was a lodger in the house of the individual killed, and of whose murder the defendant stands accused,—he was in the house at the time, or came in soon afterwards. The question, whether the alleged witness was in a situation that would qualify him to give evidence, is a question of fact, to be tried, like any other question of fact, upon its own evidence. Does the main cause turn upon it? It is a question that requires to be examined into with the same care, and therefore with the assistance of the same securities for trustworthiness, as those which are looked upon as indispensable to the principal cause.

Between delay for the sake of evidence, on the one hand, and exclusion of the evidence, for want of the requsite delay, on the other, the connexion will, after all, it carefully and honestly looked into, he found (like so many other of the evils with which the system of procedure is pregnant) in a much greater degree factitious than real. Such will be the result presented by the chapter,* the business of which is to bring to view the arrangements capable of serving in lieu of absolute exclusion, in the character of remedies to vexation, expense, and delay.†

The strongest case, in favour of the exclusion, is where imprisonment, itself tantamount in vexation to a severe punishment, is the lot of the defendant during the coutinuance of the delay. Here, then, is punishment—a perfectly distinct and incontestable lot of punishment, inflicted: inflicted, where perhaps it is undue, and, at any rate, before it is proved to be due.

In this case, however, there is an evident medium between the continuance of this perhaps unjust punishment, and exclusion of the evidence—whence acquittal from all punishment. Bail him, if he can find bail: if he cannot, it will in general be a further presumption of delinquency: if no bail, take other securities for appearance, of which many might be enumerated, if the present were a fit place for it: in default of all such securities, discharge him out of prison, even without security. But liberation from prison is one thing—definitive acquittal is another:—because the plea is sufficient when applied to the one, it follows not that it must be so when applied to the other.

At any rate, the question (it will be seen) turns still upon proportions. The perhaps altogether undue or excessive vexation being a determinate quantity, the proportion will depend upon the quantity of the delay. Admitting it to be better that a delinquent should go unpunished, than that a punishment should remain hanging over his head for years,—it follows not that the proposition would be true, if, instead of years, a man were to say days or weeks.

All this while, an argument that pleads against the delay, and therefore in favour of the exclusion, ought not to be lost sight of. The evidence, if produced, will tend to conviction: will operate in disfavour of the defendant. A result this, of which the probability at least must be assumed, to justify the delay, with the vexation thus attached to it. But the supposed probability, on what is the persuasion of it grounded? It is on the part of the plaintiff that the evidence is called for: a considerable presumption this, but by no means a conclusive one.

Expecting to see the defendant proved guilty, expecting to find the guilt established by this evidence, he applies accordingly for the delay necessary to the obtainment of this evidence: on this supposition, indeed, it is a matter scarcely to be apprehended that it would be the endeavour or wish of the plaintiff to extend the quantity of delay for the purpose of vexation,—to extend it beyond the exigency of the case; for, the longer the delay continues, the longer the manifest object of the prosecution, the natural wish on the part of the plaintiff, continues unaccomplished.

So much for ordinary probability. But a case neither improbable, nor perhaps altogether without example, is this:—The plaintiff has no expectation that the evidence he applies for will operate to the conviction of the accused: he entertains no such persuasion or suspicion as that the accused is really guilty of the crime: the object, the real object, of the application for delay, is not justice, but vexation: the vexation of an individual, of whose innocence the accuser himself is conscious.

The case is a possible one; though, if examples of it were to be looked for, happily for mankind they would be found (I believe) extremely rare. But the case where, on the part of the plaintiff, an ill-grounded but sincere persuasion of the defendant’s guilt, or an exaggerated estimation of it, has been productive of an ill-grounded prosecution, is much less rare.

On the ground of that one of the evils opposite to the ends of justice which we are now considering,—in so far as evidence (i. e. an extra quantity of delay, considered as being necessary to the production of it) is the cause of the disease, and exclusion proposable as the cure,—English law, however heedless, is not quite so impotent, as on the ground of either of the two preceding ones.

Delay? Oh yes: of that there is no want: but, for exclusion to be put upon evidence for the avoidance of preponderant delay, no tokens of any provision—no token of so much as a thought.

To the allegations on both sides, in general terms, respecting the general matters of fact on which depend the propriety or impropriety of excluding an article of evidence to save the delay that would be necessary to the production of it, the ears of the courts are open. But, as to any tolerable security for the truth of these allegations, on this occasion as on all others, learned judges know better than to suffer themselves ever to receive it.

Between every two operations, needful or needless, a determinate length of delay being fixed* by general rules—a length in most instances too great, in here and there an instance too scanty,—where, on the ground of the impracticability of causing the evidence to be forthcoming at the regular time, coupled with the probability of obtaining it at a more distant period of time, a further length of time is or is pretended to be needful, a special application is made to the court for this indulgence. In this case, if the materiality of the article of evidence in question be out of dispute, and yet the demand of the delay be resisted, the consequence of such resistance, if successful, is a virtual exclusion put upon the evidence; and this on the score of delay, i. e. of the undue delay that would be the necessary result, if the lot of evidence in question were to be received. It is in this way, and this way alone, that, on the ground of delay, i. e. of the mischief that may come to be the result of it, any exclusion can be put upon any article of evidence.

The question here concerned is of the number of those incidental questions, on which the fate of the cause is liable to be completely dependent: as completely as upon any evidence respecting the principal matter in dispute.

For the truth, correctness, and completeness, of the evidence on which the decision of this incidental point is founded, there is in every such case exactly the same demand for the best security that can be afforded (whatever that security may be,) as for the correctness and completeness of the evidence respecting the principal matter in dispute.

Note, that, independently of all ultimate loss by deperition of evidence, or of the matter of satisfaction, mere delay may, to a malâ fide defendant, be productive of certain gain, at the expense of an injured plaintiff, to an amount to which there is no certain limit. Sum in dispute £10.000; trial staved off till next assizes, six months distant; interest at five per cent.; sure profit £250: deducting only the expense of the business thus made, as the reward to the law partnership for their service, the price of the delay thus manufactured.

For grounding an application for delay on the score of the absence of a material witness, forms, every day in use, are given in the books of practice: the testimony of a witness (a single witness is sufficient,) delivered in the affidavit mode. Thus far, nothing particular; learned judges (as above mentioned) never suffering themselves to receive testimony in any but this worst of shapes. But the evidence received in this bad shape is hearsay evidence: supposed declarations, supposed to have been made extrajudicially, and even by persons undesignated,—by the common voucher, the French On; this supposed testimony thus transmitted to the court, through the pen of the affidavit-man’s attorney, when the immediate testimony of these supposed extrajudicially-speaking witnesses might, for anything that appears, have been obtained—obtained with as little trouble, and without the expense. And, unless opposed on the other side (opposed by testimony, which, so far as the mode of delivery at least is concerned, cannot be of any better complexion,) the evidence is conclusive.†

Observe the form stated as being in common use in the King’s Bench.‡ 1. “The deponent (as he is advised and believes) cannot safely proceed to the trial . . . without the testimony of” [the proposed witness.] No averment, even in the way of opinion, in general terms, that he can safely proceed with such testimony,—that he has any just ground to stand upon.

2. “In consequence of the notice of trial . . . he, this deponent, caused inquiry to be made,” &c. (stating [says the form] the nature and result of the inquiry made after the witness, and the time when he is likely to attend.)

Here we see hearsay evidence of the second remove: the persons inquired of, if any such there were, not upon oath, not judicially examined, nor even, without examination, judicially deposing: the supposed inquirer again in the same case.

Such is the sort of evidence which, if the statement be correct, is habitually received, and (unless victoriously opposed by counter-evidence) habitually acted upon as conclusive by the King’s Bench.

The Common Pleas seems not much more nice. The following extracts are from a learned practiser in that court,* who does not express indeed that it is exclusively, or more frequently, in use in that court, than in the King’s Bench.

Here divers particulars respecting the nature and result of the inquiry (as above) are given . . . “He, this deponent [no intermediate inquirer here,] hath been [not said when] to the house of the said P. W. [the proposed witness] and was informed [not said by whom] that he was gone to Norwich [not said when,] and that he, this deponent, hath sent there [not said whom nor when] for the purpose of subpœnaing him; but that the said P. W. is gone from thence, as this deponent hath heard [not said from whom,] and verily believes to be true: and that he, this deponent, cannot get any information where the said P. W. is, but is informed [not said by whom, or when, or where, nor that he so much as believes the information to be true] that he will be at home in two months. . . . .”

Can any danger attend the attempt, successful or unsuccessful, to stave off a just demand for an indefinite length of time, or for ever, by false representations thus conveyed?

The application may, it is true, be opposed: but with what effect? Not a question can the opponent (the plaintiff) put to any one in this chain of witness. It may be a complete tissue of lies: and nothing can he do that can contribute to the detection of any one of them. The defendant’s attorney being the deponent, his client may have posted persons to give such false answers or statements (not that it is worth the while;) or the like friendly deception may have been put by the attorney upon the defendant, his client.

The least unpromising course seems to be to follow the precedent of the ingenious attorney, who, to combat the forged bond, forged the release. The plaintiff makes a counter-affidavit, saying nothing of the defendant’s story (for, be it ever so false, what can he say of it to any purpose?) but telling a like story of his own, showing how he has an equally material witness now forthcoming, but whose testimony, were the required delay granted, would be lost.

If to a dishonest defence success may thus be given, defeat to a just demand,—so, on the other hand, may defeat be given to a just defence, success to an unjust demand, by the same system of—what shall we say? Inquiry? where not a question can be put? say at any rate receipt of evidence. Affidavit,† “that A B and C D are material witnesses for defendant in this cause, without whose evidence defendant cannot safely proceed to trial, as defendant is advised and verily believes,” was held bad; “because the belief seemed to go through the whole, as well to A B and C D being material witnesses, as to the other necessary part of the affidavit, that the party cannot safely make defence without their testimony; the former part, respecting A B and C D being material witnesses, ought to be positively sworn; belief as to it is not sufficient, but as to the latter part it is.”

“Held bad:”—and certainly not without something like a pretext, at any rate. Possibly, in the way above suggested, evasion was designed: but possibly, and much more probably, not. But to what use pretend to stop up this loop-hole, when so many doors are left wide open in so many other places?

To the materiality of the evidence, “belief” not sufficient, “positive swearing” necessary. Precious distinction! as if anything could ever be sworn to, howsoever positively, but belief: as if the materiality of an article of evidence were not a matter of opinion; and not only of opinion, but (for so it has been made by lawyers) a matter of law. What an indignation was once manifested at the presumption of a deponent, who took upon him to “swear the law!” Ignorant and presumptuous man! to pretend to know the law!

Held bad: and what was the consequence? Was the cause called on, without the defendant’s material, and (if his statement were true) necessary, witness? and was the subjecting him to the obligation of complying with an unjust demand the ultimate result? Let us hope rather, though it is not said, that the badness of the expression was not so fatal but that opportunity was given to amend it; viz. by ulterior affidavits.

But the badness, the real badness, where is it? Not in the suitors, justly and unjustly suspected of evasion, but in the practice of the court, by which questions are never tried but upon evidence so bad, as to afford to insincerity a perpetual chance of success, without the smallest danger of punishment, or even of shame.

Suppose the maker of this “bad” affidavit present in court, answering upon oath, impromptu; instead of having employed, as many days as he thought fit, in studying means of evasion, with his attorney at his elbow. A word or two in the way of question, half a minute in the way of time, and the ambiguity would have vanished.

A case must not be omitted,—a case of prodigious extent in the field of law,—in which no competition takes place between the mischief of delay and the mischief of exclusion; but, the delay (with or without design) taking place, the exclusion follows without remedy—follows by act of law.

It results from the principle of fixed times with long intervals. The time for the trial is come: it has been fixed, as it is of course, by a blind rule. A witness, or an article of written evidence, that was to have been produced, fails of being produced. A few days, hours, or minutes more, the evidence would have been produced. But the time is past. It therefore cannot be produced. In the first place, suppose the failure on the plaintiff’s side: what is the consequence? Misdecision, to the prejudice of that side. To the plaintiff, loss of the right in respect of punishment: to the malefactor (whatever may have been his guilt,) impunity; temporary or ultimate, according to circumstances.

In this case, the exclusion of the evidence, that is, the non-forthcomingness of it for want of the delay, may have been designed or undesigned: the work of man, or the work of adverse fortune. But the mischief resulting from it, the misdecision, is the work, exclusively the work, of the man of law: the work of the technical system, with its fixed days and excessive intervals. Considered in respect of its duration, the exclusion may be distinguished into two periods. The first is not the work of the man of law: his is not the blame: accident, or unlicensed misbehaviour, is the cause: but the second is his altogether. A slight evil he sees produced without his participation: this does not satisfy him; but, upon the mere ground of this slight evil, he inflicts another—in all cases a much greater, in some cases an infinitely greater, evil, of the same kind.

At the preappointed time, the evidence is not forthcoming: what, in point of reason and justice, is the practical result? Appoint for the production of it the earliest open day in which, according to probability, it can be forthcoming. No, says the man of law to himself: no purpose of mine will be answered at this rate.

In cases not criminal (i. e. where, be the case what it may, the species of suit belongs to that class,) if it be on the plaintiff’s side that the failure takes place, the mischief is not irreparable. It depends upon him to suffer a nonsuit, and proceed anew, paying costs: whereupon, at the end of six or twelve months from that time, and at the expense of three or four or five score pounds, if the evidence has not perished in the meantime, he may take another chance.

If it be on the defendant’s side, it may perhaps be allowed to him to take such other chance: but it depends not upon himself; and it must be at an increased expense. On the trial in question, the verdict must be against him—he in general paying the costs on both sides,—and, if he obtains the felicity of a new trial, it cannot be till after motion and argument thereupon.

In criminal cases opens a very different scene.

If it be on the defendant’s side that the failure takes place, it seems rather difficult to pronounce, in every case, what may be the result. On an application made on the ground in question on that side, power for putting off the cause is not wanting; and in each instance the great probability seems to be, that, the judge being satisfied of the propriety of the application, due time would accordingly be given.

It is where the plaintiff’s is the side on which the failure takes place, that the prejudice applies, and the mischief flows in consequence. Breaking out on this side, no mischief is ever to be repaired: and this is called humanity and justice.

At the preappointed hour, a witness who should have appeared, fails to appear: an article of written evidence which should have been produced, fails of being produced. Had the failure been foreseen, application for time might have been made, and time granted accordingly. The failure not having been foreseen, not having been foreseeable, no time is to be granted: the omission is fatal: the malefactor triumphs.*

Behold here another exemplification of the practice of deciding, and against the merits, on grounds foreign to the merits.

Behold here again the power of pardon thrown out of the window, like medals on a coronation day, to any one that will take it up: to any witness whose testimony is necessary: to the possessor, for the time being, of any piece of paper, the production of which is necessary: to any one who, by fraud or force, discoverable or undiscoverable, will manage so as to keep the man or the piece of paper out of the way for a few minutes.

All this is in favorem vitæ. No man’s life shall be put twice in jeopardy. Hypocrites. Say, why is man’s life ever put once in jeopardy? Did ye ever, could ye ever, give any better reason for your human sacrifices, than used to be given in Mexico, and is now given in New Zealand? “Because it is what we do, and have been used to do, for so many hundred years?”

But the same hypocrisy reigns where there is no life in jeopardy. On the continent, nonbis in idem is moreover a maxim of Rome-bred law: a maxim made indeed of stretching stuff, like all maxims of all lawyers.

The malefactor in whose instance the witness or the bearer of a paper has fallen sick, or been drowned, or been made drunk, and so forgotten himself,—how much less guilty is he than if the man had come to his time? If the chance of triumph must be secured to every malefactor, let it at any rate be a fair chance: let fortune judge, not fraud in fortune’s name. Admit dice and boxes among the furniture of the temple of justice: but let the dice be fair, the boxes fairly handled; no loading or cogging, as at present.

CHAPTER V.

EXCLUSION OF IRRELEVANT EVIDENCE, PROPER.

Of the mischief liable to result from the admission of irrelevant evidence, no separate mention need be made, be it what it may, it is resolvable in toto into the mischief producible by vexation, expense, and delay,

The difference between the ground of exclusion in the present case, and in those others, consists in this:—in those three cases (i. e. in every case where the evidence is not irrelevant,) there is an option to make—there is a quantity of mischief, a weight in each scale: there is something to lose by the proposed exclusion,—a chance in favour of justice; there is a disadvantage that must be incurred by the proposed exclusion,—a probability in favour of misdecision, or perhaps a certainty. But in this case, in the case where the information proposed to be delivered in the character of evidence is irrelevant, there is nothing that can be lost by the proposed exclusion: not the least danger of misdecision is incurred by it.

In this case, then, the inquiry is much more simple than in any one of those three others: there, there are two quantities to weigh, two values to find: here, but one. Suppose the proposed evidence irrelevant, exclusion is the indisputable consequence.

Irrelevant evidence is evidence that bears no efficient relation to the fact which it is brought to prove: evidence which proves nothing: as well might one say, no evidence.

Fit, unquestionably fit, to be excluded. But to what purpose speak of it? Who is there to whom it could occur to propose the admission of any discourse coming under this description? Who is there, whose purpose could in any way be served by it?

To a party, plaintiff or defendant, acting in bonâ fide,—believing himself to have right on his side, and seeking nothing but the means of proving it,—there can be but one inducement for the demanding or delivering irrelevant evidence; viz. the belief of its being relevant: add, material and needful, without which the relevancy of it would not help him.

False conceptions on this head are far from being unfrequent: conceptions which, whatever ground there may have been for them in opinion, prove false in the result.

By the force of prejudice, in a weak judgment, in a disorderly imagination, there is no saying what reverie may not be presented in the character of a lot of evidence. If every such supposed or pretended article of information were liable to be obtruded upon the judge, and in any quantity, at the instance and at the pleasure of either party, and of each party, no power of exclusion on this ground being left to the judge,—it is easy to conceive how completely, in any cause, the justice of the case might by this means be overwhelmed.

Prosecution for witchcraft: oral evidence in support of the charge. On the part of the defendant, no direct evidence, but the general proposition, the alleged improbability of the fact, in the character of circumstantial evidence.* In reply, on the part of the plaintiff, to prove the probability, Glanville’s History of Witchcraft, or any other article of the demonological library, proffered in evidence. Upon this invitation, shall it be the duty of the judge to take up the book on the spot, and, previously to his giving his decision in the cause, to read it from beginning to end? and so on with regard to every other article in that same library? If not, and if he should not think fit to read it, his reason for rejecting it would naturally be founded on some such ground as what is expressed by the above-mentioned clause. In a reasonable mind (he would say) it does not appear to me that the contents of this book are of a nature to contribute anything, or at least anything worth regarding, toward the forming a persuasion affirming the existence of the alleged acts of witchcraft, charged by the plaintiff to have been committed by the defendant.

To a party acting in malâ fide, the inducements, constant and casual together, are equally obvious. We have seen the mischiefs liable to result to the party in the right, from excessive loads of matter, relevant or irrelevant, thrown upon the mind of the judge: perplexity, deception, misdecision. We have seen the mischief in the shape of vexation, expense, and delay, capable of being drawn down from the same source upon the party who has right upon his side: so many mischiefs, so many inducements, in the eyes of a malicious and unscrupulous adversary.

The following are natural exemplifications of irrelevant evidence:—

1. Be the suit criminal or non-criminal, evidence against Tertius is relevant or irrelevant as against Reus, according as participation is or is not brought home to him. Will it be so, or not? Sometimes it will not be to be known, till the whole of it has been gone through: sometimes the fact of the participation may be proved or disproved in the first instance. The line of conduct by which a burthen, a legal obligation, criminal or non-criminal, is, or ought to be, imposed upon Tertius, is (we shall say) a chain of acts, the connexion of which with the conduct of Reus may be proved by some act antecedent to the very first link, subsequent to the last, or in concomitancy with any intermediate one. An example of the first-mentioned case, an order; of the next, an act of confirmation; of the last, extrajudicial discourse of a confessorial nature, in the way of conversation, acknowledging participation by any of those modes of behaviour which in a criminal case denominate a man an accessary, whether before the fact or after the fact.

What may have happened is, that, though Reus was in confederacy, all along, with Tertius, and though evidence sufficient for the proof of the confederacy exists, and can be produced, yet the nature of it cannot be understood till after the part acted by Tertius has been brought to view.

In all these cases, prove participation upon Reus, everything that has been done by Tertius is material: all evidence which contributes to proof of it is relevant. If no such participation be proved, all that was done by Tertius is, with regard to Reus, immaterial, all the evidence of it irrelevant.

If (as in case of an order, or formal act of ratification) it be agreed or established that no proof of participation, no other proof, can be given, than what is distinctly separate from the evidence of the principal course of action; if, at the same time, the proof of the act of participation be short, that of the principal course of action long; the proof, or what is given for proof, of the act of participation, should come first. Why? Because, failing this proof, evidence of the principal course of action falls into the category of irrelevant evidence, and the suit should of course be rid of it.

What has been done by English law in relation to irrelevant evidence, distributes itself naturally under two heads: what has been done for the exclusion of irrelevant matter, and what has been done for the accumulation of it.

First, as to the exclusion of it. In this respect, much depends upon the words in which the evidence is collected.

1. Collected vivâ voce, coram judice et partibus, all irrelevant matter everything that appears to wander from the point, is nipped in the bud.

Accordingly, to the extent in which this mode (including its sub-modifications) is employed, irrelevancy, in the character of a source of vexation, expense, and delay, is scarce known: exclusion takes place instanter, and no mischief is produced on either side. None by the exclusion, because what is excluded is of no use: none by the irrelevant evidence, because, before it has time to produce any mischief, the door is shut against it.

In the following modes of collection, accordingly, the plague of irrelevancy is in a manner unknown:—1. In the natural mode, as employed in causes tried in courts of conscience, and before justices of the peace out of sessions; 2. In the jury trial mode; 3. In preliminary examinations taken before a justice of the peace, or before a coroner; 4. In examinations before committees of inquiry, or commissioners of inquiry.

2. Irrelevant evidence is the peculiar growth of equity. In the language of that country, it is called scandal and impertinence. For the designation of matter to which nothing worse can be objected than that it is useless, the word impertinence seems to have been employed: when the irrelevancy is aggravated by injuriousness, the word scandal.

A consequence inseparable from the modes of collection there in use, is, that in this case the peccant matter, before it is turned out, must be let in. This circumstance we may be pretty well assured was not overlooked, when the mode of collection came to be chosen, in, by, and for, those courts. Nothing could be better adapted to the ends of judicature. Business made by the quantity of peccant matter let in; business made by the discussions relative to the exclusion of it: business made by admission in the first place; business made by exclusion in the second place.

The mischief swelled to such a height as to be past endurance the auditory nerves of the judge (of a judge who never heard anything about the matter) were continually wounded by it: it became necessary to apply a preventive remedy. Order that no answer* be given in without having been signed, and thence manufactured and dressed up, by counsel: order that no interrogations be exhibited for the examination of witnesses, without having received the same security against scandal and impertinence. An additional load of vexation, expense, and delay, laid upon all causes, and the chance of misdecision increased by the sophistication of the evidence, for the adding of a sham security against the irrelevant matter that might come to be introduced in here and there a cause! As if the responsibility of the underling sort of lawyer whom the judge punishes every day without scruple, could receive any material addition from the responsibility of another sort of lawyer, whose situation is too near that of the judge to be exposed to punishment.

Business made by letting in the irrelevancy; business made by tossing it about when in, and throwing it out; business made by stationing a set of porters whose constant employment is to keep it out. Should irrelevancy creep in notwithstanding, does the responsibility amount to anything? Oh, no: that would be contrary to all rule. It is the lawyer that transgresses; it is the client that is punished for it.

How irrelevancy is shut out, when it is men’s wish to shut it out, has been seen already. But what could be more adverse to the ends of judicature?

We come now to speak of the arrangements whereby the accumulation of the same valuable matter is compelled, or otherwise encouraged, in subservience to the same ends.

1. Of one of the consequences of the exclusion put upon the most satisfactory kind of evidence, confessorial evidence, a momentary mention has been already made: the time of the judge consumed, his faculties oppressed, by an inundation of inferior, of hearsay and other extraneous, evidence. First sample of virtually irrelevant evidence artificially and habitually accumulated,—extraneous, vice confessorial at large.

2. In this case, and from the rest of the matter belonging to this case, should be distinguished the more particular case where the use of the confessorial evidence is to serve for the authentication of an article of written evidence (contractual, or casual and informal:) a sort of evidence extractable from the party, without any additional vexation, expense, or delay; and not without a boundless mass of vexation, expense, and delay, from extraneous sources. Second sample of virtually irrelevant evidence artificially accumulated,—extraneous evidence vice confessorial for the purpose of authentication.

In a mass of assertive matter, whatsoever is false without conveying instruction by its falsity, is, on that account, whether relevant or irrelevant, at any rate superfluous and useless. The falsehoods of the thief, or other unlicensed malefactor,—such falsehoods, especially when drawn from him by interrogation, in court or out of court, are pregnant with instruction, useful instruction: the fictions and other falsehoods of the lawyer, relevant or irrelevant, always superfluous and useless, barren of instruction, are pregnant with nothing but confusion and misconception, their intended fruit.

3. Of the nature of that sort of discourse which forms the matter of written pleadings, a slight sketch has been already given: of its inutility—of its repugnancy to the ends of justice—of its subserviency to the ends of judicature. Third sample of virtually irrelevant evidence artificially accumulated,—matter of written pleadings, and more especially of that sort of written pleading which is called special.

What! Pleading? the matter so carefully distinguished from evidence? Do you call pleading evidence?

It is, and it is not, evidence. It is not, to any good purpose; it is, to a variety of bad ones. It is not, for the purpose of giving termination, or at least any right termination, to the suit; it is, for the purpose of giving continuance to the suit. It is not, for the purpose of grounding any right decision upon, and in favour of, the merits; it is, for the purpose of grounding wrong decisions on points foreign to the merits. It is not, for the purpose of any decision, subservient to any of the ends of justice, because, being partly irrelevant and partly false, it is known to be unworthy of all regard, and accordingly no regard is ever paid to it: it is, for the purpose of producing, without compensation, that vexation, expense, and delay, for which a compensation is afforded by genuine evidence: it is, for producing that misdecision, the danger of which constitutes the characteristic mischief of false evidence.

In lawyers’ language, it is not evidence; because lawyers have settled with themselves not to give the name of evidence to any assertion, which, in case of mendacity, they are not prepared to punish. It is evidence, because, with the exception of that accidental and adventitious property, viz. that of subjecting the utterer to punishment in case of mendacity, it has all the characters of evidence.

It is not evidence, for the purpose of subjecting to punishment the liar by whom it is delivered; it is evidence, for the purpose of subjecting to pillage the innocent suitor at whose expense it is delivered.

4. Bills in equity may either be included under the last preceding head, or be considered as constituting a separate one.

The matter of them may be considered as part of the matter of written pleading, inasmuch as it takes shelter, along with the rest, under the wing of the mendacity-licence.

It may be considered as a separate article, in virtue of the multifariousness of its contents: in virtue of its containing (over and above the matter of assertion) matter of interrogation, and matter of surplusage,—general matter, which, if the appropriate matter happens to be more or less true, is still irrelevant.

From the rest of the irrelevant matter, which, whatever might be the consequence of omitting it, never is omitted, may be distinguished one never-omitted portion of scandal and impertinence: impertinence, and that of a scandalous nature, regularly put in by the learned person whom the party is forced to pay for keeping out scandal and impertinence.

Another difference. In the sort of matter that is more apt to be presented by the word pleading—in what at common law goes by that name—a man puts in, or does not put in, lies, as he sees convenient: at any rate, the obligation of mendacity does not extend to any of the assertions appropriate to the individual suit. In the matter of a bill, one necessary part is appropriate matter, in respect of which matter the learned draughtsman is forced to tell lies, on pain of loss of cause to his client; this part is distinguished by the name of charging part; a chain of assertions, constituting the indispensable foundation of the corresponding chain of questions. What you do not know, and ask to know (ask of the defendant whom you suppose to know,) you must declare that you know, and pretend to tell the court how it is.

5. To the account of the difference in respect of the mode of collecting the evidence, as between common law and equity, must be set down an unknown mass of irrelevant or otherwise redundant matter, in such of the written instruments as have the name of evidence. The commissioner or examiner, the judge ad hoc, by whom the evidence is extracted in this shape, is paid according to the quantity. That in this state of things a portion of surplusage should in the aggregate mass of causes be generated (not to say in each particular cause,) follows as matter of course. It is equally obvious, that the quantity of it lies not within the reach of calculation; varying with individual circumstances, as well as with the idiosyncracy of the individual in each individual cause.

6. Indistinctness is the parent, not only of confusion, but of surplusage. Confusion generates business: surplusage is business ready generated. In the courts called ecclesiastical, the plaintiff’s story, true or false, possesses at any rate that species and degree of distinctness which is produced by a division into numbered articles. The principle of distinctness thus infused into the charges, with the indirect questions virtually included in them, extends itself to the answers, and so on to any objections (or, as they are called, exceptions) which, on the score of insufficiency, or any other, may come to have been taken to the answer. In equity practice,—after the clouds of confusion that have been raised by an undivided bill, followed by an undivided answer, each with its train of surplusage,—two species of instruments (viz. the list of questions by which, under the name of interrogatories, testimony is extracted from extraneous witnesses, and the list of observations by which, under the name of exceptions, ulterior responses are called for at the hands of a defendant) have somehow or other been suffered to receive the benefit of this principle. To no lawyer by whom any such articulated instrument was ever drawn—to no professional lawyer (not to speak of judges,) could the distinctness and comparative perspicuity of the instrument thus divided, have ever been a secret: by no such lawyer could that confusion, which, in the undivided instruments, results from the non-application of that principle, have been unexperienced, have passed unperceived. It would therefore have long ago been applied to every such instrument, had distinctness been among the ends of judicature.

7. Of affidavit evidence, that worst sort of evidence, on which, and which alone, so many causes are tried—the only sort which a judge of the learned class ever receives for his own use,—mention has been made already. To point out how efficient, in the character of a cause of clearness, the same principle, articulate division, would be in this case, the slightest hint may (after what has been said already) suffice. In the case of a bill in equity, the line that separates question from question forms a sort of indirect principle of division, and thence of distinctness, however inadequate. In an affidavit, even this faint light is wanting. What can be more evident than the utility of affidavit evidence to the ends of judicature?

The confusion that pervades affidavit evidence is still more favourable to evasion; and thence (through the medium of deception) to misdecision; thence to vexation, expense, and delay, through the medium of irrelevancy. But its subserviency to the intermediate ends of technical judicature does not lessen its subserviency to these ultimate ends; nor therefore supersede the mention of it.

When, in a bill in equity, an answer, or a deposition, the adverse party has observed what to him appears to come under the denomination of scandal or impertinence,—he applies to the court, that the obnoxious instrument may be referred to the master (the subordinate judge of the court,) to report whether there be any matter of that description; and if yes, to cause it to be expunged: costs to be paid by the delinquent.

How useful an arrangement, if, in the equity (as the phrase is) of this equity practice, some master were employed, or some other connoisseur in scandal and impertinence, to look over the whole of the current mass of “practical forms” in this view. Ten volumes of this sort of matter lie before me, all in one modern publication, virtual folios, though nominal octavos.

Impertinence (to speak technically) he might find to constitute the ground of all of them; scandal, an appropriate sort of embroidery, in not a few: more particularly in those copious effusions of technical eloquence called indictments and informations: more particularly still where the effusion comes under the denomination of a libel, or (on that or any other score) comes under the denomination of a state or political offence.

On the occasion of a libel more particularly, certain scandal is (or at least used to be) regularly employed to encounter problematical; vicious or virtuous, the defendant’s life, character, and behaviour, is or was aspersed Between the two scandals, observe the difference: that which is certainly scandal, is uttered under a licence, and the author paid for it: that which may either be scandal or useful truth, is uttered without the licence, and the author, guilty or not guilty, together with an indeterminate train of innocent men in the character of printers and venders, is made to pay for it.

In the mean time, and until the master here spoken of shall have received the reference, and made his report, and that report been acted upon, and the expunction effected,—the way might be paved, at any rate, for such a reform, by a constitutional resolve: I mean, among jurymen, but more especially special jurymen, and on the occasion of all those political offences of which the mischievousness is so problematical as it is commonly in the case of state libels:—to lay it down to themselves as an inviolable rule, to pronounce a verdict of not guilty, if, among all these charges so coupled together in the conjunctive, there be a single one, which (whether capable of proof or not capable) is not fully proved. Of what use is that man’s conscience to him, who suffers an attorney-general, or any other lawyer at the bar, with or without the support of an imperious and brow-beating lawyer upon the bench, to force him to commit perjury?

CHAPTER VI.

EXCLUSION OF THE EVIDENCE OF A CATHOLIC PRIEST, RESPECTING THE CONFESSIONS INTRUSTED TO HIM, PROPER.

Among the cases in which the exclusion of evidence presents itself as expedient, the case of catholic confession possesses a special claim to notice.*

In a political state, in which this most extensively adopted modification of the christian religion is established upon a footing either of equality or preference, the necessity of the exclusion demanded on this ground will probably appear too imperious to admit of dispute.

In taking a view of the reasons which plead in favour of it, let us therefore suppose the scene to lie in a country in which the catholic religion is barely tolerated: in which the wish would be to see the number of its votaries decline, but without being accompanied with any intention to aim at its suppression by coercive methods.

Any reasons which plead in favour of the exclusion in this case will, à fortiori, serve to justify the maintenance of it, in a country in which this religion is predominant or established.

These reasons seem referable partly to the one, partly to the other, of two of the heads above mentioned:—viz. 1. Evidence (the aggregate mass of evidence) not lessened; and 2. Vexation, preponderant vexation.

1. First reason in favour of the exclusion: mass of evidence not lessened by it.

Suppose it an established, and thence a known rule of procedure, that a catholic priest is not exempted from the obligation of disclosing (if called upon in a judicial way, like any other witness) statements made to him in such his character, by a person appearing before him in the character of a penitent, in the catholic sense: statements of such a nature, as would operate in the character of self-prejudicing (including self-criminative) evidence, if reported by such his confessor, in or for the use of a court of justice.

What would be the consequence:—That, of that quantity of confessorial evidence which is now delivered in secret for a purpose purely religious, a certain proportion (it is impossible to say what, but probably a very considerable one) would not be so delivered: would be kept back, under the apprehension of its being made use of for a judicial purpose. The rule would operate as a prohibition upon all such confessions for the spiritual purpose, as would be applicable to the temporal purpose: and the penalty would be, whatever consequence of a penal or otherwise burthensome nature might be expected to flow from the decision which such testimony would warrant, and would therefore be calculated to draw forth.

So far as the prohibition thus applied had its natural effect—the effect of preventing the practice,—so far, the support afforded to the exclusion by the reason “mass of evidence not lessened,” would extend. So far as the prohibition failed of being followed by this effect, the reason operating in support of the exclusion would be to be sought for under another head: vexation, preponderant vexation.

Of this vexation, then, what would be the quality and the amount? It would present itself in a variety of shapes:—

I. I set out with the supposition, that, in the country in question, the catholic religion was meant to be tolerated. But with any idea of toleration, a coercion of this nature is altogether inconsistent and incompatible. In the character of penitents, the people would be pressed with the whole weight of the penal branch of the law; inhibited from the exercise of this essential and indispensable article of their religion; prohibited, on pain of death, from the confession of all such misdeeds as, if judicially disclosed, would have the effect of drawing down upon them that punishment; and so, in the case of inferior misdeeds, combated by inferior punishments.

Such would be the consequence to penitents: to confessors, the consequences would be at least equally oppressive. To them, it would be a downright persecution: if any hardship, inflicted on a man on a religious account, be susceptible of that, now happily odious, name. To all individuals of that profession, it would be an order to violate what by them is numbered amongst the most sacred of religious duties. In this case, as in the case of all conflicts of this kind, some would stand firm under the persecution, others would sink under it. To the former, supposing arrangements on this head efficient and consistent, it would have the effect of imprisonment—a most severe imprisonment for life. As to those who sunk under it,—what proportion of the number would on this occasion be visited by the torments of a wounded conscience, and to what degree of intensity those torments would amount in the instance of each individual, are questions, the answer to which must on this occasion be referred by a non-catholic to the most competent judges amongst catholics: but a species of suffering, the estimation of which does not require any such appropriate and precise information, is the infamy that could not but attach itself to the violation of so important a professional as well as religious duty.

The advantage gained by the coercion—gained in the shape of assistance to justice, would be casual, and even rare: the mischief produced by it, constant and all-extensive. Without reckoning the instances in which it happened to the apprehension to be realized, the alarm itself, intense and all-comprehensive as it would be, would be a most extensive as well as afflictive grievance.

But the vexation pointed to as above would not be the only price that would be to be paid for so inadequate an advantage. The advantages of a temporal nature, which, in the countries in which this religious practice is in use, flow from it at present, would in a great degree be lost: the loss of them would be as extensive as the good effects of the coercion in the character of an aid to justice.

To form any comparative estimate of the bad and good effects flowing from this institution, belongs not, even in a point of view purely emporal, to the design of this work. The basis of the inquiry is, that this institution is an essential feature of the catholic religion, and that the catholic religion is not to be suppressed by force.

If in some shapes the revelation of testimony thus obtained would be of use to justice, there are others in which the disclosures thus made are actually of use to justice, under the assurance of their never reaching the ears of the judge. Repentance, and consequent abstinence from future misdeeds of the like nature; repentance, followed even by satisfaction in some shape or other, satisfaction more or less adequate for the past: such are the well known consequences of the institution; though in a proportion which, besides being everywhere unascertainable, will in every country and in every age be variable, according to the degree and quality of the influence exercised over the people by the religious sanction in that form and the complexion of the moral part of their character in other respects.

But, without any violation of this part of his religious duty, and even without having succeeded so far as to have produced in the breast of the misdoer any permanent and efficacious repentance, modes are not wanting in which it may be in the power, as it naturally will be in the inclination, of a conscientious and intelligent confessor, to furnish such information as shall render essential service to the interests of justice. I mean, by ministering to the prevention of such individual misdeeds as, though meditated, are as yet at a stage short of consummation; or of such others as, though as yet not distinctly in contemplation, are in a way to present themselves to the same corrupted mind. Who the misdoer is, the confessor knows better than to disclose; as little will he give any such information as may lead to the arrestation of the delinquent, under circumstances likely to end in his being crushed by the afflictive hand of the law. But, without any such disclosure, he may disclose what shall be sufficient to prevent the consummation of the impending mischief. “At such or such an hour, go not, unless accompanied, to such or such a place: strengthen such or such a door: be careful to keep well fastened such or such a window.”

Warnings of this kind, if I understand a-right, have not unfrequently been given:—warnings, which might have been given, and would have been given in better times, might (had they been given) have operated as preventives to the most grievous public calamities. At the time of the religious wars in France, more than one of the fanatics, who, with different degrees of success, aimed a murderous hand at the person of the monarch, prepared themselves for the enterprise, according to the histories of the times, by previous confessions, in the course of which the design was more or less disclosed. Without exposing the intended assassin, it might naturally have been in the power of the confessor to have frustrated his flagitious project: without opportunity, the attempt would not have been made; and, without the attempt, the design would not have afforded evidence sufficient for the purpose of penal justice.

The discussion has been rendered the more particular, for the purpose of giving the clearer view of the essential differences by which this case stands distinguished from another, with which it might be liable to be confounded: I mean the case of those disclosures which may come to be made by an individual, criminal or non-criminal, to a law adviser, in the character of attorney or advocate; a topic which will come to be considered in its place.*

CHAPTER VII.

REMEDIES SUCCEDANEOUS TO THE EXCLUSION OF EVIDENCE.

We have seen how easily it may happen that the evils opposite to the collateral ends of justice shall be greater than the evils opposite to the direct ends; that the vexation, expense, and delay, produced by the delivery of this or that lot of evidence, shall constitute a greater mass of evil than that of the undue decision or failure of justice that may take place for want of it: and this, even supposing the misdecision to be not merely the accidental or probable, but the necessary, result of the exclusion put upon the evidence. We have seen that, in this case, if there be no other resource, the propriety of the exclusion is a necessary result.

But, how necessary soever, it is manifestly an extreme and a most disastrous remedy. It is sitting down under the disease, to save the unpleasant consequences apprehended from the remedy. It is taking the course the patient would take, who should resolve to endure the torment of the stone, in order to save the pain and danger of the operation.

But as, under the pressure of that bodily affliction, a skilful physician will naturally look out with anxious diligence for whatever milder remedy presents any prospect of relief,—so, where vexation, expense, and delay, is the disease, a vigilant and honest legislator will never embrace exclusion and thence misdecision in the character of a remedy, without applying all his industry to the discovery of other remedies that may be applied without contravention of any of the ends of justice.

If the exclusion of evidence be proper and justifiable in any case, it can only be in default, or by reason of the insufficiency, of such milder remedies. The indication therefore of what presents itself in that character, is a task which seems indispensable to the present work.

The following short descriptions may serve, in the first instance, to afford a general conception of the principal arrangements that offer themselves to this view. Explanations, when they appear necessary, will follow. Let it not be regarded as an objection, if a set of arrangements presented here in the character of succedanea to a comparatively narrow abuse, exclusion of evidence, should be found to include the leading features of a system competent to the extirpation of the immense mountain of abuse, of which that inferior hill forms a part. Its utility with reference to that extraneous purpose, neither destroys nor impairs its utility with reference to the direct purpose of this work.

I. Against vexation, expense, and delay, taken together:—

1. Anticipative survey of the contents of the budget of evidence on both sides.

2. Tribunals within reach:—in which is included, limitation of the local extent of judicial districts; thence augmentation, or (according to what has been, or has not been, done before) restoration, or non-reduction, of then number: the county courts, and more especially the hundred courts, of former times in England.

3. Sittings of each uninterrupted. Exemplifications: the different courts of conscience scattered here and there over the face of the country; but more particularly and literally the London police offices.* Also, the courts held to so many purposes by justices of peace, acting, not in general sessions, but in voluntary division meetings: or singly, at their own houses.

4. Meeting of the parties coram judice, at the outset of every cause, for the purpose of the above-mentioned anticipative survey, as well as for so many other purposes. Exemplifications:—practice of the courts of conscience, and of the courts held by justices of the peace, as above.

5. Examination by epistolary correspondence; and, by that means, of persons resident at any magnitude of distance: whether within or without the effectual jurisdiction of the court in question, or the government under which it acts. This, in the case where examination vivâ voce is barred by impracticability, physical or prudential.

II. Against expense, exclusively or more particularly:—

† (6) 1. Power to any party to insist upon the production of any evidence, notwithstanding any preponderancy of expense, on condition of bearing the burthen of it definitively, as well as in the first instance. This includes the defraying the expense necessary to the production of evidence deemed necessary to the opposite party, in preference to the seeing a decision pronounced in favour of the adversary (say the defendant) on the ground of the inordinateness of such necessary expense.

(7) 2. Advertisement for assistance to justice for the expense of evidence. The need of such assistance to be certified by the judge, if he thinks fit, after hearing what, on the occasion of the anticipative survey, has been said on both sides.

(8) 3. Abolition of taxes upon justice.

III. Against delay:—

Against delay, in respect of the contingently consequent deperition of the matter of evidence:—

(9) 1. Prompt collection of forthcoming, without waiting for the unforthcoming, evidence.

Against delay in respect of the contingently consequent deperition of the matter of satisfaction:—

(10) 2. Provisional decision on either side: taking sufficient security for restitution ad integrum, in the event of a subsequent production of the as yet unforthcoming evidence.

(11) 3. Provisional sequestration of the matter of satisfaction, without ulterior decision at that time.

IV. Against vexation to the judicial breasts, and consequent delay, in the paramount appellate judicature of the House of Lords (a very particular case, peculiar to the British constitution.)

(12) 1. Application of the principle of the Grenville Act to that upper house of parliament.

After this summary view, let us now descend to particulars.

I. Remedy the first:—Anticipative survey of the contents of the budget of evidence; viz. of the contents of it on both sides, and (when there are divers persons on the plaintiff’s side, or on the defendant’s side, or on both) on all sides.

That vexation, expense, and delay, may be saved, by putting an exclusion upon a lot of evidence, is manifest enough. Be the evidence ever so necessary to right decision, the production of it will always be attended with some portion (be it ever so small) of each of those collateral inconveniences. Exclude the evidence, you exclude right decision, you exclude justice; but, on the other hand, you exclude along with it those collateral, and minor, and (generally speaking) inferior, inconveniences.

Among the advantages resulting from the preparatory operation, one is obvious enough: the exclusion which it would, every now and then, enable the judge to put upon evidence that would otherwise have been to be received—upon evidence deemed irrelevant or superfluous; which is as much as to say, of such a nature, that, by the exclusion of it, no prejudice could come to the ends of justice.

But, on the present occasion, it is not in the character of a means of exclusion that this operation is proposed, but as a means of saving the judge from the necessity of putting exclusion upon evidence: from the necessity of an operation so adverse, or even fatal, to the direct ends of justice, in the case where the lot of evidence which but for that survey would have been to be excluded, was material; and still more, if it was absolutely necessary to enable the judge to pronounce such a decision as shall be conformable to those direct and principally-to-be-regarded ends. In this character, the use of the anticipative survey is not quite so obvious as in the other character just mentioned.

1. Under the blind arrangements made, on the ground here in question, by English jurisprudence (a limited allowance of time for the whole trial, including the production of all the evidence—a limited allowance of time, for a quantity of business that may be any number of times greater than the whole quantity of the business that can possibly be done in that time,)—an incident which, for want of such anticipative survey, must every now and then take place, is, that, in the confusion produced by this forced condensation, a quantity of evidence altogether indispensable shall stand excluded; while another mass, which upon the anticipative survey would have been seen to be superfluous, has been admitted. Introduce the anticipative survey, the superfluous evidence is excluded; and, by means of the room thus gained, the indispensable mass of evidence, the evidence necessary to the principal end of justice, is let in.

Of the blind fixation and limitation of the quantity of time allotted for the reception of a mass of evidence, the quantity of which, for the purpose of any general rule, is incapable of being foreknown,—of this imbecility or this fraud, the consequence is, an indiscriminating exclusion of an indeterminable proportion of the whole mass of the evidence which would otherwise have been delivered. Of the prevalence of this blind practice in the English system, an indication somewhat more in detail has been given in another place.* Rendering the practice on this head completely consistent with the ends of justice, is what could not be done without the abolition of those barricades, and the restitution of natural liberty. But, supposing them to remain, in the proposed anticipative survey may be seen the only remedy by which the venom of that abuse can be mitigated, and the mischief of it reduced.

English home-bred law, as also Rome-bred law (English as well as continental,) afford each of them a remarkable exemplification of a blind and indiscriminate exclusion put upon masses of evidence, in nature as well as quantity altogether indeterminate: English home-bred, by means of the limited and unextensible quantity of time allowed in most cases for the reception of the whole mass of evidence; Rome-bred, in consequence of the studied secrecy, by the operation of which the door is shut against all such counter-evidence, or other ulterior evidence, the demand for which would have been created and made known, had the mass of evidence adduced by each party been known in time to the other. These examples, while they bring to view the demand for the anticipative survey here proposed, will serve to show, at the same time, how exclusion of evidence is liable to be produced, not only without benefit, but without thought: and, while they show the use of this survey in other respects, will also show in what it has the effect of preserving from exclusion, evidence which would otherwise have been subjected to that fate.*

The following would be the sort of anticipative survey which I would propose:—

Each party, in the presence of the other or others, produces a list of the contents of his budget of proposed evidence: names and descriptions of the proposed witnesses; whence they or their testimony have to come; with the articles of real and written evidence (if any) which they will respectively have to produce, and the particular purposes for which each article of evidence is wanted. Each party, in a word, gives in, for the consideration of the judge and the opposite party or parties, the same sort of information (so far as evidence is concerned) that, under the existing system each party’s attorney puts into the sort of document called a brief, for the instruction of the advocate.

Results of such a survey:—

1. All evidence which (supposing it to be true) will, in the opinion of the judge, be either irrelevant, or unnecessary, or unavailing, discarded beforehand: and the vexation, expense, and delay, attached to the production of it, saved.

2. Item, all evidence, from the production of which, though material and even necessary, a preponderant amount of vexation, expense, and delay, would be inseparable.

3. In the instance of each article, arrangements taken in concert, for the production of it in such time and manner as shall be attended with least delay, vexation, and expense.

It is only where the cause labours under a certain degree of complexity, that the demand for this sort of survey can have place. In the great majority of causes, this one meeting would serve for the termination as well as commencement of the cause: as it does in the English courts of conscience.

In some cases, neither the effect nor the substance of the evidence can be anticipated: the effect of an original, for example, from an alleged transcript: and the points to which it is possible for a witness to speak may often be foreknown with certainty, when the effect of his testimony can not reasonably be presumed.

Many are the cases in which the irrelevancy or inutility of one mass of evidence follows with certainty from the omission of another. Discard Titius, all testimonies respecting his character, all evidences which are wanted for no other purpose than to operate in opposition or support of his, become (whether irrelevant or no) useless.

Confront the anticipative survey with special pleading. The information which special pleading gives (or rather professes to give without giving,) and in the worst possible mode, and by a chain of communication purposely wire-drawn through a course of months or years,—that, and more, the anticipative survey gives, freely and honestly gives, in the course of a single meeting, commonly in fewer minutes than the other course would consume months. Special pleading brings forward the allegations, carefully keeping back the evidence (if any) from which they are to receive their support: the anticipative survey brings to view at the same time, the allegations, and either the evidence itself or the sources from which it is to come. Special pleading, giving (i. e. selling) encouragement, reward, to false allegations, to which,—exempting them from the punishment provided for allegations recognised in the character of evidence,—it has secured the effect of evidence: the anticipative survey, throwing the sunshine of cross-examination upon every syllable that is said,—call it allegation, call it evidence.

Meantime, this anticipative survey, what is it? Is it vision, imagination, innovation? Comes it from Formosa? from Utopia? No: not it indeed: nothing is there in the least new in it, but the name. You may see it, in every court where Justice is in honour, and, at the same time, permitted by Power to show her face. You may see it in every arbitration court; in every police office; in the court of every justice of the peace throughout the kingdom, acting out of the trammels of regular iniquity. You may see it in any court of conscience, as often as the nature of the cause admits of its containing a mass of evidentiary matter complex enough to afford a demand for any such distant scrutiny. You may see it in every counsel’s, in every attorney’s, brief: with no other difference than between complete, correct, and voluntarily or involuntarily honest, information, on the one hand, and, purposely incomplete, purposely incorrect, mutilated, garbled, sophisticated, on the other.

II. Remedy the second:—Tribunals within reach.

In other points of view, the importance of this remedy belongs not to the present purpose. Diminish in idea the importance of the matter in dispute in the cause; increase the distance of the spot from which a witness, or the bearer of an article of real or written evidence (who to this purpose may be called a witness,) has to come; increase, in like manner, the number of such witnesses;—you may always bring about a state of things in which the vexation, expense, and delay, attached to such conveyance, shall severally or jointly form a mass of collateral inconvenience preponderant over the evil opposite to the direct ends of justice in the case in question; over the evil of misdecision. But wherever this reversal of the more usual and natural proportion takes place, exclusion of the evidence (though misdecision follow) is the result authorized and required by a due regard to the aggregate of the ends of justice. But misdecision, especially when manifest, is a great and glaring evil: it is a lamentable resource. Diminish, on the other hand, the distance of the spot from whence the witness or witnesses have to come, in order to reach the seat of judicature, you may make sure of coming to a state of things in which the aggregate inconvenience of vexation, expense, and delay, by reason of attendance, can never be equal in weight to the evil of misdecision in any the least important cause.

The length to which, in point of prudential and even physical practicability, the application of this remedy can be carried, depends, it is manifest, upon the state of the population. Confront, on this ground, the state of London or Paris, with that of Siberia or the back settlements in America.

In default or aid of vivâ voce deposition and examination, comes naturally the epistolary mode, as mentioned elsewhere. Unfortunately, the same causes which render the establishment of tribunals within everybody’s reach for vivâ voce deposition and mutual examination of the parties, impracticable, render the epistolary mode of communication unapt to be generally practicable.

But, in this same state of things, the substitution of professional agents, as under the technical system, would in general be not less impracticable; and, instead of assuaging the inconvenience, would be more apt to aggravate it.

The consequence is, that, in a thinly peopled country, for slight injuries (more precisely as to the degree it is impossible to speak) the nature of things admits not of a remedy. Within the bosom of each family, absolute power in the head; as between a member of one family and that of another, independence and anarchy: such is the state of things, unless in so far as it may be susceptible of relief from the occasional and rare visitations of delegated (yet to this purpose absolute) power from a distance.

In a system of abuse, particular abuses serve sometimes as palliatives, sometimes as covers and apparent justifications, to each other.

In the absence of tribunals within reach, may be seen the most plausible pretence for the expulsion of the parties from the presence of the judge.

Out of British ground, it would be difficult to form an idea of the pitch to which the grievance opposite to the arrangement now proposed has been raised in England. Value at stake, a few thousands of pounds, or a few shillings; station of the judge in the metropolis; abode of suitors at 350 miles distance.

Even in England, it is comparatively an innovation. In former times, each county, each hundred, had its court; not to speak of minor ones: and if for one sort of cause, why not for another? But the great judges, whose lips were close to the sovereign’s ear, stole the sword from his side, and crushed their little rivals at a distance: the metropolitan courts swallowed up the country ones. By these and other devices, personal attendance being rendered intolerable to the parties,—admission of substitutes, under the name of attorneys, was prayed for, and granted, as an indulgence. Dependants, accomplices, and instruments of the judges,—these substitutes became the natural enemies, and (with their confederates the advocates, called serjeants and apprentices) the sure betrayers, of the parties their employers.

To these real grievances, circuit courts added a sham remedy: excess of delay, crowned by excess of precipitation. In each separate cause, six or twelve months consumed in the London offices, in doing worse than nothing; at each one of a given list of county towns, from one to four days employed in a year, in running causes against time: for any given number of causes, each of any given length, exactly at every place the same time.

III. Remedy the third:—Sittings uninterrupted.

This remedy corresponds to another article in the list of the devices of the technical system, viz. fixed times with long intervals; and consists in the removal of that abuse. In other respects, the mischievousness of that abuse, the consequent importance of this remedy, are topics that belong not to the present head.*

What belongs to the present head, is to show how the evil attached to misdecision by reason of exclusion of evidence, and thence to exclusion of evidence, may be removed or lessened by these other means; viz. by filling up the vast gulfs fixed at present between the to-day and the to-morrow, in the chronology of technical judicature.

In Westminster Hall, as everybody knows or is supposed to know, there are exactly four days, and no more, in every year: each day consisting of twenty-eight ordinary days, more or less. Distance between to-day and to-morrow various: minimum, about one month; maximum, more than four calendar months.

In the rest of England, certain northern counties excepted, there are, according to the same chronology, but two days in a year, viz. in the juridical metropolis, the assize town of each county: each such day consisting of two ordinary days, or thereabouts; distance between to-day and to-morrow, half a year.

In three northern counties there is but one such day;† the length of it not differing, in any considerable degree, from that of a southern day: distance between to-day and to-morrow, one whole year.

To give a complete and accurate system of juridical chronology would be to give a complete institute of a separate branch of science, forming, as already observed, a twig of that branch of the flash language. Illustration only being the object here, the above outline will be sufficiently full and accurate for the present purpose.

Of these great gulfs between day and day, the effect in respect of exclusion of evidence is two-fold:—1. To increase the evil of it, when it takes place; 2. And thereby the cogency of the demand for it.

The plaintiff’s right rests upon a deed. To-day the original is not, could not have been, forthcoming: to-morrow, at least for anything that is known to the contrary, it will or would be: a transcript, a correct and complete transcript, is forthcoming now. But, the original being in existence, the transcript, not being the best evidence, stands excluded, unless the defendant, by and with the advice of his learned assistants, thinks fit to admit it.

Observe now the difference between natural time, and juridical time.

The juridical to-morrow, is it the natural to-morrow? The delay, taken by itself, is scarce an object to either party: no advantage worth stickling for to a malâ fide defendant and his learned accomplices. The expense, though commonly an inferior, would indeed be something of an object more or less (understand the expense of a fresh hearing, with its fresh fees.) But, forasmuch as in most cases the costs on both sides fall to the charge of him against whom the decision passes, the costs of the delay thus purchased would fall upon the purchaser: and the amount of the respite being, by the supposition, no more than a natural day, it can scarce ever happen that the advantage thus to be purchased shall be adequate to the expense. He will, therefore, of course, admit the transcript instead of the original: in other words, not call for the putting upon the original that exclusion which he has a right to call for.

The juridical to-morrow, on the other hand, is it so long to look for as this day six months? In the ordinary state of things, the exclusion of the inferior second-hand evidence will be rigorously exacted. The injured plaintiff excepted, it is the interest of all parties that the application of the excluding rule be exacted without mercy. It is the interest of the malefactor’s learned accomplices of all classes; and they have taken care that it shall be his. Costs of to day’s fruitless hearing; so much revenge at any rate. Half a year’s interest upon the sum due; or, what comes to the same thing, upon a sum equal to the value of the service (in what shape soever) demanded by the plaintiff, at the charge of the defendant, at the hands of the judge. Half a year’s interest upon the sum due: to this amount is the premium which the learned contrivers of the system have taken care to secure, for encouraging men to engage and persevere (in the teeth of conscience) in the defence of a bad cause: a bounty, to the value of which, as any one may see, there are no limits. Add to the above, the chance of saving the principal, by the deperition of the evidence in the course of this juridical day; or the certainty of it by withdrawing the matter of satisfaction, the defendant’s property, out of the plaintiff’s reach. Add again two other chances, which, in a mass of cases covering a great exent of ground in the field of law, for the better encouragement of business-making injustice, the same learned wits have been ingenious enough to provide, and happy enough to preserve. In many cases, upon the death of the malefactor, death of the suit, for the benefit of his representatives: upon the death of the party injured, death of the suit, for the benefit of the malefactor himself.

Thus stands the premium in the south of England; and in the northern counties above mentioned, the value of it, as above mentioned, is exactly double.

Thus at common law: but in equity, it sets calculation at defiance.

Thus stand the interests of the defendant, dishonest or honest: thus stand the interests of the defendant’s honest or dishonest, but in both cases equally unpunishable and irreproachable, professional assistants and advisers.

But the interest of the injured plaintiff’s assistants and advisers, which way do they point? The same way as those of their own client? No: but the same way, and with equal force, as those of his adversary’s equally learned professional assistants and advisers.

In this state of things, is it in the nature of man—is it in the nature of the man of law, that the exertions made for the admission should be equally sincere, equally strenuous, with the exertions made for the exclusion, of the evidence?

In equity you have plaintiffs and defendants by dozens, scores, or even hundreds, on a side. Observe the consequence: Mors Ricardi, vita Roberti; from the mortality of the suitors, comes the mortality of the suit. One of the plaintiffs dying, the lawyers kill the suit: then comes a bill of reviver, to raise it like the phœnix from its ashes.*

IV. Remedy the fourth:—Meeting of the parties at the outset, in the presence of the judge.

This remedy corresponds to the first and fundamental article in the list of the devices of the technical system, viz. exclusion of the parties from the presence of the judge: and consists in the removal of that abuse. In other points of view, the mischievousness of that abuse, the importance of this remedy, belong not to the present purpose.

What belongs to the present purpose, is simply the importance of this meeting, and at this stage of the cause, to a preceding article in this list of remedies—the proposed anticipative survey of the contents, of the budget of evidence on both sides, nor to this operation in respect of every beneficial effect with which it is pregnant, but only in respect of the room it is capable of making for material evidence, by the exclusion of superfluous and less material evidence.

In regard to the matter of fact which constitutes the principal subject-matter in dispute, it may, in the instance of each one of the parties, have happened, or not have happened, to him, to have been in a situation enabling him to deliver evidence, direct or circumstantial, respecting it. But a matter to which it is scarce possible, in regard to either of them, that he should not be able to speak, in the way of evidence,—and to which, in most cases, he will be better able to speak than any one else,—is the result and particulars of his information and expectations relative to the quantity and quality of the mass, and of each article in the mass of the evidence which he looks upon himself as able (with the assistance of the arm of justice) to procure.†

Whether the correctness, or the completeness, of the information on this head be considered—whether in each instance the party be considered as honest or dishonest, sincere or insincere,—the importance of his presence will still be out of doubt. Honest, his own purpose—dishonest, the purpose of his injured adversary—can never be adequately answered by any person in his stead.

It is from himself, in most instances, that the information will have to come. From any other person, from any professional law-assistant of his, the information thus afforded would in all such instances be upon no better footing than second-hand evidence, derived, or pretended to have been derived, from the client: false perhaps in its origin, and without danger to the author of the falsehood; or, if true, truncated or perverted by the negligence or sinister interest of the lawyer through whose lips it would be to be delivered.

From the original source, the breast of the client, all pertinent questions that could be put on the other side would come accompanied with a reasonable expectation of their extracting (true or false) an instructive answer. Directed to the breast of the law-assistant,—if, on the part of the client, there were any deficiency in respect of the maximum of honesty and sincerity, all such expectation would in general be vain. Such and so much information as in the conception of the client it would be for his advantage to be handed in to the judge,—such and so much he would (in so far as it occurred to him) communicate to his professional substitute for that purpose: such and so much as in his conception threatened a contrary effect, such and so much, it would be equally his care not to communicate.

In lieu of original vivâ voce testimony, conceive the business of the proposed survey managed in the only way in which learned judges will allow themselves to manage by themselves any sort of evidence—by the affidavit testimony of the parties, their respective attorneys, or all together. With the outside show of justice, the learned and venerable personages in question would as usual be delighted; with the inward fruit and effect, they would not, any more than usually, be afflicted.

On this, or any other occasion, affidavits from the defendants, lawyers or non-lawyers, would they be an adequate succedaneum to the presence of the deponents themselves? Yes, if, like the man, the paper could stand up and answer questions, could betray what it would wish to conceal,—by blushes, by hesitation, by evasive responsion, by self-detected or otherwise detected mendacity, or by silence.

V. Remedy the fifth:—Examination in the epistolary mode.

This remedy has not its counterpart anywhere in the list of the engines of chicane.

The idea of this remedy is, on the contrary, drawn from that fountain, in other respects so rich in abuse, the practice of the courts of technical procedure.

The mode here in question is the mode in which, in equity procedure, evidence is extracted from a defendant, by the bill, the amendments (if any) to the bill, and the exceptions (if any) taken to the answer.

That this mode, if substituted to the best mode (examination vivâ voce per partes et per judicem) is not so favourable to the ends of justice, as the same mode subjoined, where the importance of the cause warrants so great an addition to the delay, vexation, and expense—subjoined, I say, to that vivâ voce mode—seems to be out of dispute.

But a case has been already mentioned (and that a case which, in so commercial a country as England, cannot but receive frequent exemplification,) in which vivâ voce examination will be in general not to be obtained; viz. where, at the time in question, the residence of the proposed witness is within the dominions of some foreign state. In this case, if no assurance, regarded as sufficient, be given, that the proposed witness will, within a sufficiently short interval, be forthcoming in England (taking that for the proposed country,) in such manner that his testimony shall be delivered in the accustomed mode (regard being had to the nature of the suit,)—the effect of the expatriation is thereby to put an exclusion upon the testimony.

In this same sort of case, it will not unfrequently happen that the proposed witness, though at the time not resident within the jurisdiction of any English court, shall in effect be not the less subject to the power of it; as (for example) in virtue of some property there, which he is unable or unwilling to remove; or in virtue of any other bond of attachment, by which his affections are fastened to the spot.

In this case, give to the party who has need of the testimony the power of extracting the testimony of the proposed witness in this mode, you apply a remedy succedaneous to that of exclusion; you obtain a mass of evidence, which (by reason of the delay attached to the production, or to the chance of the production of it) it might otherwise have been necessary—prudentially, or even physically, necessary—to exclude.

Upon the face of it, this remedy is bad in the way of diet, good in the way of medicine: bad, by reason of the opportunity it allows for mendacity-serving premeditation and instruction, and of its depriving the cause of the circumstantial evidence afforded by deportment: good, viz. in cases where, premeditation being necessary to complete and correct responsion, examination vivâ voce is not of itself sufficient; and in the cases in which, by reason of distance from every judgment seat the power of which is applicable to this purpose, such examination is not to be had.

Pursuing no ends but those of judicature—blind, when not hostile, to all better ends,—the English technical system, where it does employ this remedy, employs it in the way of diet—refuses to employ it in the way of medicine.

In the room of the mode of examination better adapted (as above) to ordinary use, English equity, within the irregular and comparatively narrow field of its jurisdiction, employs this mode of examination in all cases. In lieu of that preferable mode of examination, where rendered impracticable by distance, it does not indeed reject altogether the assistance of this remedy, but, by useless clogs and conditions impairs the efficacy of it. The defendant himself being the proposed witness—his own self-regarding testimony being to be extracted by the adversary, in the hope of its having the effect of self-prejudicing testimony,—a set of commissioners are to be sent to the antipodes, or found there, to apply to him, in the character of a security for veracity (by means of the ceremony of an oath,) that eventual punishment, to the application of which no such ceremony is (except thus by positive institution) necessary. From the plaintiff, while remaining such, no such testimony is permitted to be obtained; and from an extraneous witness, though in the same cause, testimony (if in that distant situation extracted at all) is not allowed to be extracted in that mode; is not allowed to be extracted but in another, the vivâ voce mode, per judices ad hoc, appointed on both sides, the parties not present (neither by themselves nor by their advocates;) nor in any mode can it at this distance be extracted but by consent of parties on both sides.

Out of the comparatively narrow field of equity jurisdiction (with the addition of the still narrower fields of ecclesiastical court and admiralty court jurisdiction,) the remedy, except in an extraordinary case presently to be mentioned, is alike unknown for diet and for medicine.

From the superior courts of common law, commissions for taking examinations of witnesses (extraneous witnesses only, not parties in the character of witnesses) have been known to be sent into foreign parts, in imitation of the commissions issued, also, at more early periods, and in more frequent instances, from the courts of equity, as above.* But this appears never yet to have been done, but by consent of both parties. Precious remedy! Good against bonâ fide, inapplicable against malâ fide, litigation! Inapplicable, where the disease cries aloud for remedy: good, where there is no disease, or next to none! But, in this case, the mode of examination, whether better or worse than epistolary, is not epistolary, but vivâ voce.

Neither by equity nor by common law is the remedy applied in any other than that class of causes indicated by the denomination of civil, synonymous in this case to non-criminal causes.

Such, according to a rough outline, are the distinctions themselves: causa patet, here as elsewhere.

When, to give the suitor a partial relief under the denial of justice produced in the practice of the common-law courts by the exclusion of both parties from the presence of the judge, equity came in and proffered her treacherous assistance,—it was on condition of paying her retainers to scribble questions instead of speaking them; and thus, instead of prompt and spoken answers, to extract studied answers, manufactured by others of her retainers, to be set to work on the other side. On what occasions was it that these pretended servants of justice were ready and desirous of lending to this purpose their dear-paid services? Not on the few occasions alone in which, on the part of the party in the right, and for the purposes of justice, there was a real need of it; but on all occasions in which, by the sale of their services, there was money to be got; that is, on all occasions whatever, that arose within the limits of that field, which, in the scramble for jurisdiction had fallen to their share.

VI. Remedy the sixth:—Remedy the first applying to expense alone. Power to either party to charge himself with the expense of an article of evidence, to the relief of a party on the other side.

The application of this remedy admits of two diversities. Forget not that, in both, the use of it is to serve in the character of a makeshift provision, the intention of which is to save justice from the danger which she cannot fail of incurring as often as the door is shut against needful evidence.

The first case is where, it being presupposed that the burthen of the evidence on both sides is to be made to rest on the shoulders of the party in whose disfavour the cause is decided, this burthen (as to such part of it as one of the parties has created) would, when compared to the value in dispute, be too heavy to be thrown on the other of the parties. Value in dispute, say £5: expense of necessary evidence on the plaintiff’s side, say £500: expense of evidence on the defendant’s side, not worth bringing to account. Under the natural arrangement respecting costs in ordinary cases, the plaintiff producing this expensive evidence, would, in case of success, be entitled to throw the burthen upon the defendant. But, rather than that any such disproportionate oppression should be inflicted, much better would it be that this thus inordinately expensive evidence should be excluded; although of such exclusion the consequence by the supposition would be, that, as to the subject-matter of the demand, the £5, the plaintiff would be without remedy.

But suppose the plaintiff to stand up and say, My honour, my interest, or, if so you will have it, my caprice, is (in a way which I do or do not choose to mention) in such sort concerned in the business, that, rather than not have the business settled, I am content, in the event of my gaining the suit, to remain charged with the burthen of this mass of evidence. The remedy here in question consists in the making it a matter of obligation, or of discretion, on the part of the judge, to accede to a proposition to the above effect.

The remaining case is of a nature not so apt to take place, nor, in respect of the matter of fact, so easy to establish.

The plaintiff having brought his action for the £5, as before, the defendant stands up and says, I have a good defence; the money is not due. But, to produce the evidence necessary to the proof of this my defence, an expense of not less than £500 would be indispensable: I have or have not the £500; but, whether I have or no, the hardship of being charged with such an expense would be extreme. A less evil would certainly be the payment of the £5 claimed, though not due: but persuaded as I am that nothing at all is due, even this would be no small hardship on me.

To apply the proposed remedy to this second case, it would be necessary for the plaintiff on his part to stand up and say (reasons imaginable as before,) Rather than not have a decision in my favour on this my demand, I am content to relieve the defendant from this expense, and take it upon myself, enormous as it is, in the first instance. Here is the money: let it be applied to the production of the evidence, in the keeping, and under the direction of the court.

Even here the disproportion is not too great to have been actually exemplified. But, if it appears too great for probability, pare it down till you bring it within the pale.

To pre-establish, in relation to the article of evidence in question, every circumstance necessary to give probability and rationality to the offer above exemplified,—the nature and effect of this distant evidence, the trustworthiness of it, the necessity of that expense to the obtaining it, and the assurance of its being obtained by means of that expense,—will be apt to be matter of no ordinary difficulty. But cases where the necessary expense has been much greater, have been already examined, and, when the expense of a voyage round (or about half round) the world is considered, may easily be conceived: and as to the probable nature and effect, and the trustworthiness, these are points continually exposed to uncertainty, and as continually calling for calculations, which by each suitor, on his own account, are as constantly made: with more or less anxiety, ability, and exactness.

Where the expense of producing the evidence rises to a certain pitch, the resource of epistolary examination will, in most cases, be apt to present itself as being upon the whole the more eligible remedy.

The discussions necessary to the settling of the several points in question, as above, presuppose the establishment of the proposed anticipative survey, and help to exemplify the utility of it. They are no other than such as, in every day’s practice, come under discussion between client and attorney. In the place where the scene lies, rests the only difference: in the one case, the client’s parlour, or the attorney’s office; in the other case, the place of mutual rendezvous, the court of justice.

Technical practice—English or continental, English home-bred or continental Rome-bred (it is but repetition to say,) knows of no such remedies—knows of no such temperaments. The pound of flesh on the one side, or the pound of flesh on the other: such, when the flesh of suitors is concerned, is the alternative given by the man of law. In either case, the man of law makes equally sure of his share.

VII. Remedy the seventh:—Remedy the second against expense alone. Advertisement for pecuniary assistance for defraying the expense of evidence.

If ever there can be a beneficial application of money, it is this. To every man, be he who he may, what is more valuable, what more necessary, than justice? What is there that is valuable to a man, and of which the preservation depends not upon justice? By whom can property, reputation, condition in life, life itself, be retained—by whom can property, reputation, or condition of life, when ravished, be recovered, without justice?

Gratuitously bestowed, what can be more generously bestowed than assistance given to a man to enable him to call in to his assistance the hand of justice?

Gratuitously, or for a price, what assistance can be more innoxious, more secure against all abuse, than assistance lent to justice—lent under the direction of the judge?

On every occasion on which charity presents a demand, what nation so prompt, so ardent as the English, to pour the balm of relief into the bosom of distress?

The probability of the demand for an inordinately expensive mass of evidence—the nature, materiality, and necessity of the evidence so demanded,—the inability of the party to defray the expense; all these points have been established to the satisfaction of the judge, by the anticipative survey. He gives a certificate, and (with it, and on the ground of it) an authority to solicit for this purpose, from the lovers of justice, contributions, to be lodged in the hands of the officers of the court.

The lawyer alone continues to uphold the scarecrow set up so many centuries ago to frighten away from this field the hand of charity. For depriving the indigent of all chance for justice, what has been left undone that could be done? Claims that for indigence, for mere indigence, could not be prosecuted, have been forbidden, as if in odium spoliati* —are still forbidden—to be sold.

Advertisement for subscriptions? Oh yes: for relief of distress in other shapes, no rule of law forbids it. But for distress (however exquisite) for lack of justice, advertisement would be useless: subscription would be too dangerous. Dangerous? Yes, dangerous: for has not the man of law contrived to convert it into a crime? Charity thus exercising itself, has it not, by the spell of jargon, been stamped with the name of barretry, or maintenance, or champerty, or some other stigma, on pretence of which, charity, or mutually beneficial traffic, may be alike converted into crimes? Perhaps yes; perhaps no: here, as elsewhere, authorities lean one way, authorities lean the other. In waters thus troubled and thus deep, what is the wonder if men choose not to run the risk of being drowned?

Forty years ago this abuse was denounced, in company with a kindred abuse, still more mischievous, because still more extensive.* Forty years hence the denunciation may be repeated, and with as little fruit. For, under the reign of jurisprudence, one generation witnesses the birth of an abuse, three or four more the maturity, and then perhaps comes the death.

As to the buying and selling of legal demands of all sorts, the only objection that could at any time have been made against it, is in this strain: judges are so weak, so dependent, so cowardly, so corrupt—feudal barons so profligate and so formidable, that, after buying a bad title for the purpose, by his own hands or by that of a retainer of his, a baron (it will frequently happen) will, by bribery or intimidation, engage the judges to give to this bad title the effect of a good one.

Supposing it good for anything, what an argument, to come from learned lips!

Supposing it at that time good for anything, what would it be worth at present? Between the present state of judicature in that respect, and the state of judicature as above delineated, is there any more resemblance than between the present state of judicature in England, and the present state of it in Otaheite? Three or four centuries ago, the benefit had danger mixed with it; therefore, now that the effects of the remedy would be all pure benefit, the proscription put upon it is to continue: such is the logic of jurisprudence.

Not that there ever was, or could have been, a time in which the reason was worth a straw. He who could thus convert a bad bought title into a good one, what should have hindered him from giving the same effect to a bad one of his own making? The purchase-money would have been so much saved, applicable to the purpose of bribing the judge, or suborning witnesses.

For restoring the indigent to a chance of justice, there is what is called a remedy, in the pauper acts. Like so many others, however, to which men of law have given a permit, it may be set down to the account of sham remedies. What it applies to, is that factitious part of the expense, which ought not to have been imposed upon the most opulent: what it does not apply to, is that part (that here in question included) which presses upon all ranks, being natural and inevitable.

VIII. Remedy the eighth:—Abolition of taxes upon justice.

In speaking of this or any other expedient for obtaining pecuniary supplies for the relief of this species of distress, it is impossible to avoid thinking of the factitious loads by which it has everywhere been aggravated. I speak not here of what has been done by the judge for his own profit; but of what has been done by the finance minister for his own use. The subject has elsewhere been treated pretty much at large. See “Protest against Law Taxes,” (Vol. II. p. 573.)†

Upon evidence itself, the tax does not in every instance bear with any peculiar weight. But, being imposed in the preliminary proceedings rendered necessary to the introduction of evidence, and the subsequent proceedings necessary to the giving effect to evidence, the influence is the same as if the tax had been imposed directly upon the evidence.

Like most other taxes, it operates partly as a burthen, partly as a prohibition: as a burthen upon him who stands up for his right, notwithstanding the tax; as a prohibition upon him who (through utter inability, or in choosing the least evil) gives up his right: giving up a just debt or other demand, or submitting to an unjust one, or submitting to be punished for an offence never committed, by the coercive force of the tax.

A tax upon capital, when the amount is considerable, is regarded as a bad tax. Why? Because, for the sake of a present supply, it nips future prosperity in the bud. The force of the objection, it is evident, depends upon the quantum. The tax may be a very bad one, or it may be as tolerable as most others.

But a tax upon capital would be a blessing, in comparison with the taxes upon justice. It takes men, indeed, as it finds them; but it does not single out the distressed.

The existing taxes upon justice are a tax upon the distressed, falling almost always upon capital, carrying off sometimes this or that proportion of capital, and (by the help of those other taxes upon justice, which are imposed by lawyers for their own benefit, and sunk in the pockets of the collectors) in many instances the whole of it.

They fasten down, in a state of slavery under the rich, not those commonly understood by the name of poor—indigent persons of the labouring classes—but the indigent of all classes.

The tax on medicine, though equally bad in principle (and the only one that can be so,) is, in comparison, owing to its comparative lightness, probably much inferior in mischievousness. If it were possible that a return should be made of the number of persons killed by it in England, in a year, I should not expect to find it amount to more than a few hundreds.

A law-suit is a perpetual blister upon the mind. If your wish be to do as much mischief as possible by another tax to the same amount as that of the impost upon justice (including that part which lawyers have imposed and collect for their own benefit,) get a return from the physicians and apothecaries all over England, of the patients under their care, and distribute among them an impost to an equal amount. Proportions are of course no more to be regarded in the one case than they are in the other: but, lest the lawyer and his partner, the law-taxing financier, should leave you behind them, omit not to employ collectors to go about in cold nights to strip the last blanket from the beds of the most wretched of the patients.

The medicine tax, if it kills men, suffers them to die at home. The law-tax sends them to rot, broken-hearted, in jails.

Oh, but the necessities of the country are so great! they furnish us an excuse for bad taxes: be the oppression of the tax more or less, it is too late to think about it. Notable excuse for barbarity and ignorance! Exactly the reverse: the greater the aggregate pressure of the taxes, the more solicitous should be your study to choose the least oppressive.

IX. Remedy the ninth:—Remedy the first against delay: and thence against intervening deperition of evidence, and of the matter of satisfaction:—Collection of forthcoming evidence, without waiting for unforthcoming evidence, or for fixed days.

Of those things which ought to be done, what is there that ought not to be done at the only time at which it can be done? Because one lot of evidence cannot yet be had, or because, though it might be had, it is not suffered to be got, is that a reason why another should be lost? In an exclusion thus indirectly put upon a lot of evidence, value unknown, is there anything like common honesty or common sense?

This remedy (so far as it extends) corresponds therefore to two articles in the list of the devices of the technical system, viz. sittings at long intervals, and blind fixation of times; and is no more than a particular application of the remedy already proposed (under the head of sittings uninterrupted) for that barefaced and most pernicious abuse.

The exclusion to which it is a remedy, is purely factitious—the work of the technical system, with its blind or too sharp-sighted arrangements. Six or twelve months must elapse, before any evidence can so much as begin to be collected. What follows? That all the evidence which, having been obtainable within that time, is not obtainable after that time, stands excluded in the lump. Is it possible, that, in the mind that devised these arrangements, any the smallest spark of regard should have been felt for the ends of justice? any more effective feeling for the sufferings of the oppressed, than the wolf has for those of the lamb he slaughters? What is it that the man wanted to be informed of? Was it a secret to him that witnesses are men, or that men die?

Even now, in the eyes of an English lawyer, this abuse is the very summit of perfection. How should it be otherwise? It gives him holidays: absolutely matchless holidays: it subtracts nothing from the mass of fees. Subtracts? It adds to the mass: it makes business: it forms a capital article in the mass of advantage provided for the encouragement of malâ fide demands, and more especially malâ fide defences.

Provision being wanted for a new-born orphan, or information lodged for an offence,—what if a justice of the peace were to say. Come again this day six months: then, and not till then, I receive your evidence? But when, from any one of those seats of natural justice, was anything heard thus monstrous? No; the licence to work iniquity descends not upon these unlearned judges: not being granted by them, it has been neither granted to them, nor to their use.

If, in the arrangement of terms and circuits, there be common sense or common honesty, give to diseased indigence, as well as oppressed and plundered innocence, the benefit of it. Extend it from courts of justice to hospitals: let no hospital be founded in future, without vacations of two months and four months for physicians, surgeons, and nurses. Men die for want of timely medicine: but do not men also die for want of timely sustenance? For want of the substance which the client, by the advice and assistance of his lawyer, has ravished; and which the official lawyer, lest the amusements of his long vacation should be disturbed, refuses to restore; are not all jails for debt slaughter-houses, filled and emptied for their benefit?

Even courts of justice have not received the benefit of this arrangement to its full extent. The reason has been already given. Against the depredations and violence of the unlicensed malefactor, neither the house, the pocket, nor the person of the lawyer are (happily for mankind) more secure than those of another man: and were the matter of wealth to perish, so would the matter of fees. Accordingly, instead of once or twice in the year, the Old Bailey sits eight times;* and the sound of the word vacation is not so much as heard in Bow Street.

Equity, indeed, has her examinations de bene esse, and her examinations in perpetuamrei memoriam. For, equity finding more fees to collect than could be got in within the limits of the common-law harvest-time, her shops are never shut long together: moreover, her birth-place was on the continent, where men were cursed with no such regalia beneficia* as terms and circuits.

But, to measure the ratio of this remedy to an adequate one, compare the scanty and irregular and undefined field of equity jurisdiction with the remainder of the field of law, criminal and non-criminal. Compare the examination of an equity examiner’s dark closet with the examination of a police office: efficiency with efficiency, delay with delay, expense with expense.

As to common law; even those resources, miserable and treacherous as they are, are more than she has ever had a heart or a head to give herself. When she is in a mood to have them, she borrows them of equity: for now, the whole trade being consolidated into one vast firm, and all interests mixed together and rendered undistinguishable, shop and shop are upon the best terms imaginable.

On this head, equity has a whim or an artifice, in so general a view scarce worth mentioning, unless it were for curiosity’s sake. If your witness is dying, or making off; if, in short, the evidence you depend upon is wanted at any of these odd times; in such case, although you are in the right, and found to be so, you must thus far pay the piper, as if the right were not on your side.

The same whim or the same artifice governed on the continent, as often as, in a suit not criminal, any one of the parties called for the testimony of an adversary.

X. Remedy the tenth:—Remedy the second against delay:—Provisional decision, without waiting for the best evidence.

When the original of a deed or other written document is so situated that the production of it cannot be effected without a more than ordinary degree of vexation, expense, and delay,—lodged in some place between this and the antipodes, in the hands of some possessor, who, proprietor or not, does or does not choose to part with it or to bring it;—where such is the situation, or supposed situation, of a supposed or alleged original, at the time that an alleged transcript, or sufficient extract or abstract, is ready to be produced;—a question may arise as between the two documents, the alleged original and alleged transcript (both certainly not being necessary, one perhaps sufficient,) which, if either of them, shall be admitted. Were both present, the admission of the transcript (unless it were for momentary provisional consultation, for the purpose or in the course of argument) would evidently be attended with some (howsoever little) danger, and with no use. A transcript, how little soever inferior in point of trustworthiness to the original, can never, so long as man is fallible, be considered as exactly upon a par with it. But the original is so circumstanced, that, rather than load the cause with the vexation, expense, and delay, attached to the production of it, it would be better to exclude it: nay, even although, to the prejudice of the side by which it should have been produced, misdecision were sure to follow. It ought therefore to stand excluded: and thereby the whole of the evidence from that source, were there no other remedy.

But the transcript,—although, in preference to or indiscriminately with the original, it ought not to be produced,—yet, rather than the evidence from that source should be altogether lost, and misdecision take place in consequence, might (if ordinarily well authenticated)—might, with much less danger than what is frequently incurred in practice, be (under the conditions above proposed) received instead of it. Nevertheless, mischief from misdecision ought at the same time (so far as is consistent with the regard due to the avoidance of preponderant collateral inconvenience in the shape of vexation, expense, and delay) to be obviated as effectually as possible. Accordingly, previously to execution, obligation (or at least liberty) ought to be in the hands of the judge, for taking from the party thus to be instated, sufficient security for the eventual reinstatement of the other party; in case that, within a time to be limited, the propriety of the opposite decision should have been made appear,—the authenticity of the transcript, or its correctness or completeness with relation to the point in question, having been disproved.

The character ascribed to the proposed arrangement (viz. that of a remedy succedaneous to the exclusion of evidence) belongs to it beyond dispute. Under English practice, but for this remedy, both would or might have been excluded—the original, and the transcript: the original, by reason of the preponderant inconvenience attending the production of it; the transcript, by reason of its being but a transcript, and the original still in existence, and the production of it, though prudentially, not physically impracticable. In virtue of this arrangement, neither stands excluded: the transcript is admitted absolutely and at the instant; the original left to be produced, eventually and if need be, at another time.

In English practice, the original being lost,—the previous existence of it, the subsequent deperition of it, and the authenticity of the alleged transcript, being proved by what is regarded as sufficient evidence,—the transcript is received instead of it. The alleged transcript received, when there exists no longer the original with which upon occasion it is capable of being compared! With how much more safety, when the original with which it may be compared is still in existence? when, in case of perjury, the witness swearing to the correctness of the transcript is capable of being detected, convicted, punished?

When received (if received at all) it is, in practice, received absolutely: without any such conditions imposed; conditions, in case of misdecision on the ground of it, providing for the reparation of the injustice.

XI. Remedy the eleventh:—Remedy the third against delay:—Provisional sequestration.

This is an arrangement of still more entire security, capable of being substituted, upon occasion, to those measures, which would be the natural result of unreserved admission of the evidence, and unreserved decision on the ground of it.

The party in whose behalf this makeshift evidence is produced, instead of the regular evidence from the same source, is (for instance) the plaintiff: the decision regularly called for by this evidence, would be, the putting that party in immediate possession of the subject-matter in dispute, on condition of finding security for eventual restitution in kind, or other adequate satisfaction, as proposed by the last preceding remedy. But, the character or situation of the plaintiff is not (to the purpose here in question at least) altogether trustworthy: the subject-matter is a female, whose honour and condition in life, in the character of daughter, ward, or wife, claimed as such by one or both the parties, is at stake; the subject-matter, though of the class of things, is an article susceptible of a pretium affectionis, and thence of damage not to be repaired by money. On any of these accounts (not to look for others,) it may be more advisable upon the whole, that,—until the authenticity of the supposed transcript can be put out of doubt (for example, by being sent to the original for reauthentication, under official or other altogether unsuspected care)—the subject-matter should either be suffered to remain in the hands of the defendant (he on his part finding security,) or be lodged in the hand of the official or other unsuspected third persons, satisfaction in the meantime being made to the plaintiff for the loss of possession sustained by him.

While the bill, without the benefit of which equity will not grant even her de bene esse examination, is scribbling by the plaintiff’s lawyers, or an answer to it by the defendant’s—while the examiner’s clerk, closeted with the witness like a confessor with his penitent, is setting down what the witness says, between sleeping and waking, or what he does not say, regardless whether it be sense or nonsense, complete or incomplete, true or false,—all this while the defendant (if he be what defendants so often are) is making the best use of the time thus given him, eating the plaintiff’s property, or sending or putting it out of reach, according to his humour and his circumstances.

While the boy is running to the chandler’s shop to buy the salt to lay upon the sparrow’s tail (an instruction not grudged to infant bird-catchers,) the bird hops or flies off at leisure. If it were in the nature of equity, English equity, to be sincere, she would find her emblem in this child. But no: the imputation would be unjust to her, if this lameness were to be ascribed to blindness.

By preventing mischief, mischief in any of the shapes in which equity is at every man’s service to prevent it, there would be nothing to be got. By making a show, and that a false one, of being ready to prevent it, much is to be got, and is got. The groom, who, having a common interest with the horse-stealer, waits till the steed is stolen, and then marches up to shut the stable door in ceremony,—he, and not the infant bird-catcher, is the true emblem of English equity.

While the bill is preparing, to ground the writ ne exeat regno, the cuckoo swindler that should have been hedged in, is winging his way to the continent, laughing at or with the hedgers. While the Injunction Bill, by which waste should have been stayed, is scribbling, the axe of the disseisor or malicious life-holder is levelling to the ground the lofty oaks from which the venerable mansion has derived shelter and dignity from age to age. While, in all the luxury of skins and parchment, the female orphan is dressing out to make her appearance in the character of a ward of the court, the sharper whom the charms of her person or her purse have laid at her feet, is clasping her in his arms, at the temple of the Caledonia hymen, laughing with her to think how the union of hearts has been facilitated by the incompleteness of the union between kingdoms.

Malefactor, whoever you are, you deserve to be confined for idiocy, or your solicitor struck off the roll for ignorance, if ever it be your ill fate to see your schemes anticipated and frustrated by English equity.

Among the almost numberless uses of the initial meeting of the parties in the presence of the judge, one is (as already intimated) the putting an instant stop to so sure a course for eluding the power of justice.

Is the party’s solvency out of suspicion, out of danger? No use in conveying him to a jail, or to a spunging-house: as little in forcing him to beg or buy sureties for his eventual forthcomingness. Is his solvency a point too dubious or too complicated to be settled at the first examination? A guard placed over him in his own house would give it all the useful properties of a spunging-house without any of the pernicious:—as if a guard could not as well remain in charge of his person, as at present of his goods! Consign the defendant to either a jail or a spunging-house, for no better or other reason than that (without any doubt of his solvency) the plaintiff believes, or pretends to believe, that the money he claims of him is due! The reason were as good for hanging him.

The inquiry thus made, does his solvency prove dubious? Seizing his person affords no security. In jail, or in a spunging-house, his effects, for every purpose of removal or dissipation, are as much in his power as if he were at home. Secure the effects themselves, all removal, all dissipation is at end.

Of this same blind arrangement, of which, in some instances exclusion of necessary evidence, in other instances unnecessary vexation, expense, and delay, for the averting the mischief of such exclusion, is the result,—and which arrangement consists itself in the constant and inexorable establishment of factitious delay, without use or shadow of pretence, of which delay a frequent and natural result is deperition of evidence,—another fruit is the deperition of the matter of satisfaction, in the manner above delineated. To secure the subject-matter in dispute from perishing, or going into wrong hands, nothing can as yet be done, for want of evidence. Why? Because it is by evidence alone that the defendant’s title to it can be made dubious, the plaintiff’s probable: and, to this as to all other purposes, the receipt of evidence, instead of being brought forward as early as possible, is put off as long as possible! Why not brought forward as early as possible? Because (as there has so often been occasion to state) it was against the interest of the founders of the system, that any evidence fit to be acted upon should be brought forward at this early stage.

On all these several points, the interest of the founders of the system was in clear and diametrical opposition to that of the suitors, and more especially to that of the honest among suitors, which is as much as to say, to the ends of justice. It was the interest of these arbiters of human destiny, that as much human misery should be produced, as the sovereign and the people would bear to see produced: and as much misery as the sovereign and the people have borne to see produced has been produced accordingly. It was their interest that as little relief under this misery should be afforded, as the sovereign and the people would bear to see withholden; and as much relief as could be withholden, has thus been withholden accordingly.

What is, and ever has been, the interest of the people, taken in the aggregate, in their character of suitors, is, that as few of them as possible should go to jail: that as little as possible of the mass of property at the disposal of the judges should either perish, or be lost to the person intitled to receive it; and that, to avert as far as possible both these mischiefs, the defendant (in all cases where his solvency was exposed to doubt, or where in any other way the plaintiff stood exposed to the danger of suffering irreparable damage) should be brought into the presence of the judge, to have, for the benefit of all his creditors (and, above all, for his own benefit, and at his own request,) the state of his pecuniary circumstances laid open to the judge as early as possible.

Unfortunately, on these same subjects and occasions, what all along has been, and still continues to be, the interest of the judges, is, that on neither side (much less on both sides) should the suitors ever be suffered to come into their presence, when it is possible to prevent it: that, above all things, no such unpleasant company should be forced upon them at the outset of the cause: that, instead of this, as many individuals as possible should go to jail, and (unless when the jails were already so full as to hold no more) be kept there as long as possible: that, while the defendant is so lying in jail, the property which, by law and justice, ought to have been restored or transferred by him or from him to the use of the plaintiff, should remain at the disposal of him, the defendant, to be wasted or embezzled by him, to as large an amount as possible: that, while in those receptacles of infection debtors were rotting in body and mind, while oppressed debtors and injured creditors were dying broken-hearted—judges, the authors of this misery, with their dependants, protégés, and bottle companions, should have as much time to enjoy and amuse themselves in as possible: and that, lest business should be presented to them in any other than the most pleasant and least troublesome form, the fate of the wretches on both sides should never be disposed of by these its arbiters, on any other ground than that of a sort of evidence utterly unfit for the purpose, and universally acknowledged so to be.*

In complaining of this, as of any other branch of the system of abuse, it has been a practice among men of law to dispute the legality of it. Dispute the legality of a sort of practice persevered in by the superior courts in general, for centuries! Dispute as well the validity of an act of parliament. As if, while legislators connive or sleep, a law were not exactly what the judges, for the time being, are pleased to make of it.

The cause of this paralogism must be looked for in a notion, entertained through prejudice, or affected from prudence, of the excellence of the law: of its subserviency to the ends of justice: whatever is not reason is not law. Whether the opposite inference would not be the more rational one, the reader is by this time in a way to judge.

The subject-matters of law are persons and things: the force of law is occupied in causing them to be forthcoming: both, incidentally, in the character of sources of evidence; both, ultimately (and, for precaution’s sake, incidentally,) in the character of parcels of the matter of satisfaction: persons, besides (in cases of corporal punishment,) in the character of subject-matters of the punishment.

The operations, the object of which is to cause them to be forthcoming for the purpose of satisfaction or punishment, are, in the books of practice, ranged under the head of execution: by them is done, or pretended to be done, that which the decision, judgment, decree, commanded to be done.

In this part of the field of law, as in most others, the dictates of utility, as pointed out by the ends of justice, are plain and simple. General rule:—in no case to omit any operation by which the forthcomingness of the article can be made more sure. Exception, where the operation is either physically or prudentially impracticable;—prudentially, because the vexation and expense attached to the execution of the decision, would be a greater evil than that of its not being executed. Memento:—in the pursuit of this object, to take that course, in which the quantity of expense and vexation created shall be the least that can be.

Uncertain, confused, voluminous, and, by its very voluminousness, rendered defective (for the more abundant the swarm of absurd and pernicious distinctions and diversifications, the more abundant the defects;) fraudulent to creditors, oppressive to debtors, beneficial to lawyers—to lawyers of all classes, from the chancellor to the bailiff’s follower,—and to none but lawyers:—such, in its bearings upon this part of the field of procedure, as upon every other, is the system still in force in England.*

To frame a system free from all these abuses,—a system in which the ends of justice and dictates of utility, as above indicated, shall be accomplished, and in the compass of from ten to fifty pages, would be an easy task: in from one hundred to five hundred pages, an impossible one.

[* ]As in the case of an incorrect transcript tendered on one side, the original being to be produced on the other.

[* ]Dumont’s Traités de Législation. “Introduction to Morals and Legislation.” (See Vol. I. p. 21.)

[* ]Dumont’s “Traités de Legislation,”—“Introduction to Morals and Legislation,” (Vol. I. p. 99.)

[† ]If a witness is asked a question, the answer to which would disclose anything which might prove detrimental to the public service, the judge will interpose to prevent the answer from being given.—Ed.

[‡ ]Dumont, ut supra—“Introduction,” &c. (Vol. I. pp. 101, 141.)

[* ]Vexation in respect of condition in life.

The history of the illustrious and most extraordinary lady who for the greater part of her life appeared in a male character, and was known by the name of the Chevalier d’Eon, affords a real example to this purpose. In the city of London, different sets of persons laid wagers on the subject of her sex: one of these wagers came to a trial in the Court of King’s Bench; and on the occasion of that trial the lady herself was summoned to give her evidence. In this scandalous attempt, the vice of gaming was added to the private offence attempted, and, by the very attempt, committed in some sort, by this indecent and barbarous impertinence. Had she appeared, the injury would have been a modification of the offence termed in the English law false imprisonment. Whether she appeared or no, it would, in a comprehensive system of penal law, embracing the whole catalogue of injurious acts, have come at any rate under the denomination of a simple personal injury.—See Dumont ut supra—“Introduction to Morals and Legislation,” (Vol. I. pp. 99, 139.)

[† ]Vexation in respect of reputation.

[‡ ]Vexation in respect of property.

[∥ ]Vexation to government, and the public at large: vexation having the effect of treason, to the destruction of the state.

[* ]By the 11 & 12 Will. III. c. 4, the punishment was commuted to perpetual imprisonment. This act was repealed, and the exercise of the Roman Catholic religion tolerated by the 18 Geo. III. c. 60, and the 31 Geo. III. c. 32.—Ed.

[† ]Quære, on this and every such occasion—How much more mischievous has the offence been, in the case where, after the commission of it, the proof of it is brought out in that indirect and casual way, than if brought out in any of the more common modes? What alteration is made in the past mischief of an offence, by the subsequent incident (whatever it be) by which the commission of that same offence is brought to light? If none at all, then why is it, to what good end is it, that an offence shall, if brought to light by one incident, be punished with death,—if by another incident, go unpunished altogether?

[* ]The judge being considered as the sort of person on whose shoulders the labour and other vexation attendant on the delivery of evidence rests, the situation he may be in admits of an ulterior distinction of great practical importance.

Distinct from the vexation, the unbalanced mental suffering, which in each individual instance may or may not be the consequence of the labour thus bestowed, there is one accompaniment which is altogether inseparable from it—viz. the consumption of time—the quantity of time occupied in the bestowing of such labour.

There are classes of judges, to the aggregate quantity of whose time, applicable to this purpose, there is no natural and absolute limit. In this case are all judges but those who judge en dernier resort. In this way, as in all others, whatever quantity of natural business there may be to be done, judges in sufficient number may naturally be found for doing it. If, at the same time that there are not fit persons enough ready to take upon themselves the duty without pecuniary retribution, pecuniary retribution cannot be found in sufficient quantity to afford to the number needed an adequate inducement,—in such case there exists a limit to the quantity of time applicable to the purpose in question,on the part of these subordinate classes of judges.

There is one class of judges, to the aggregate quantity of whose time there is a certain limit. In this case are, in every country, the judge, or bench of judges, to whom it belongs to judge en dernier resort. Of the four-and-twenty hours in each day, there is a certain proportion which (bating accidents) it may be, physically speaking, in the power of the judge to bestow upon this or any other species of labour: beyond this, the application of any additional quantity of time is not merely inconvenient, but physically impossible.

In either of two ways, the quantity of time applicable on the part of this court of dernier resort, is, physically speaking, susceptible of extension: one is, if two or more such supreme courts be instituted, each competent to all cases; the other is, if two or more such supreme courts be instituted, one competent to judge en dernier resort in one sort of case, another in another sort of case, as in the courts subordinate to them. But the first sort of arrangement leads directly to contradiction, to dissension, to civil war, to the dissolution of the government: the other keeps perpetually alive, at least, an imminent danger of those same calamities. Geographical lines of jurisdiction are drawn with ease and precision enough: metaphysical, logical, not without the greatest difficulty. As between subordinate and subordinate, where there is one superior to decide, the difficulty is not felt. But as between two co-equal courts, as above supposed, if a difference of opinion or will obtains, and neither will yield, this case resolves itself into the foregoing one—into the case just described, with its ruinous results.

In the constitutions of most States, there is, to this purpose, no difficulty. In whatever hands the supreme authority resides, the judicial authority en dernier resort is lodged, in effect: along with (to take the current division) the supreme executive, and the supreme legislative. In the constitutions of most states, this supreme authority rests in the hands of a single person, a monarch: and whatsoever may in other respects be the disadvantage attendant on that species of constitution, as to the point here in question there is at any rate no difficulty, no danger. For this, as for all other purposes, he has time sufficient at his command. The quantity of his own personal time is limited, like that of every other man: but the quantity of other persons’ time, capable, upon occasion, of being applied by him to the termination of these or any other disputes, is without stint.

Under a mixed constitution, the difficulty may be altogether a distressing one. Delay increasing ad infinitum: injustice triumphing, impunity certain: law trodden under foot: power intended to be subordinate, converted into despotic and supreme. But the solution belongs not to this place—it belongs to the head of constitutional law; and, till the constitution of the government be given, every attempt would be premature.

[* ]Douglas Cause.

[† ]Hastings Cause.

[‡ ]1. Election Committees. 2. Wellesley’s case.

[* ]Infrà, Chap. VII. Remedies succedaneous to Exclusion.

[* ]But see 45 Geo. III. c. 92, § 3.—Ed.

[† ]See Hawkins, iv. 448.

[‡ ]As to the courts of judicature, should it happen to any one of them ever to be called upon to speak upon that ground, it would pretend, as usual, to declare the law; it would in fact have law to make. On this occasion, as on every other, with a leaf taken out of Lord Mansfield’s book, it need never be at a loss.

Whatever it would be contrary to “sound policy” to do, ought not to be done. Such was the law which, on one occasion the learned lord, with the mute concurrence of his three colleagues, took upon him to make. But can there be anything so contrary to sound policy, as that, by such authority, laws of such latitude, laws involving an uncontrouled dispensing power exercisable over all other laws, should be suffered to be made? In one scale weigh the benefit—in the other weigh the price. More law, law covering a greater extent in the field of legislation, is thus made by a single judge, in a quarter of a minute, and at the expense of a couple of words, than the legislature would make in a century, by statutes upon statutes, after committees upon committees.

[Mr. Bentham seems to have overlooked one remarkable case, in which a witness was forbidden to disclose something which the judge thought proper to consider, or to pretend to consider, as a state secret. I allude to the case of Plunkett v. Cobbett, in which Lord Ellenborough refused to suffer a witness, who was a member of parliament, to be examined concerning words spoken in parliament: and this by reason of his duty, and in particular of his oath, by which he was bound not to reveal the counsels of the nation.—Phillips on Evidence (edit. 1820,) 185.

To support this inference, the two following falsehoods must have been taken for true:—1. That words spoken in parliament were state secrets; 2. That in no case ought state secrets to be revealed.—Editor.]

[* ]In case of pecuniary inability of defendant to produce his evidence, power to plaintiff to call for a decision notwithstanding, on condition of defraying the expense of defendant’s evidence. Defendant punishable, in case of malâ fide invocation. See Chap. VII. Remedies succedaueous to Exclusion.

[* ]The iniquity of this rule has forced the judges to take upon themselves the responsibility of allowing to the prosecutor a sum of money under the name of expenses:a this, however, they do or leave undone as they please: consequently the most frivolous reasons frequently suffice for leaving it undone. It is asserted in the eighty-fourth number of the Edinburgh Review, p. 403, that, in a recent case, a judge refused to allow the prosecutor his expenses, because one of the witnesses for the prosecution offended him by his demeanour.—Editor.

[† ]The following is another exception to the reimbursement of expenses:—

“When a party,” says Phillips,b “after obtaining leave by consent, examines witnesses abroad on depositions, he will not be entitled to any allowance, in the taxation of costs, for the expense of taking the depositions, although he may proceed in the action.c The same rule prevails in the Court of Chancery: if a party applies to that court for a commission to examine witnesses, he must pay the expenses.”

[‡ ]Hullocke on Costs, pp. 35-39. Tidd, 975. 58 Geo. III. c. 30.—Ed.

[* ]A case that happened within these fifty yearsa will serve at once to show the demand for a discretionary remedial power to be exercised by the judge, and the oscitancy of English law.

Action in the King’s Bench at Westminster: two of plaintiff’s witnesses, a captain and first lieutenant of a French merchantman, brought over from France: these two witnesses, if the affidavit of the real plaintiff (a Frenchman) was to be believed, had been appointed each of them as supercargo to a French East-Indiaman, which appointment they had both foregone, and he, as he believed, would have to indemnify them for the loss. Profits a stated allowance, five per cent on the voyage outward, ditto on the homeward, besides provisions and other advantages. Value of each cargo, say £50,000: this gives loss to each above £5,000: to both £10,000.

The appointment, if real, was probably made only to give colour to the demand: for what power was there capable of stopping them? But, if the loss was not really sustained, that, or a greater, might, in that same shape, come to be sustained. The cause was an insurance cause: the value at stake might therefore have been sufficient to cover even so great a loss. But suppose the value at stake no more than a few pounds: shall it be in the power of a man, in the character of plaintiff, to subject his adversary, as it were in a parenthesis, to a loss of £10,000, in addition to (suppose)£5, the amount of the satisfaction due?

The master, the subordinate judge by whom all questions concerning costs are determined, and (as it is very fit they should be) without a jury, disallowed this claim of indemnity: but what he did allow was, the expense attached to the voyage and journey and witnesses of these two witnesses to and fro between France and England.

Reference made by the court (Lord Mansfield the chief justice) to a rule spoken of as established, viz. that contingent damages (meaning damages occasioned to a witness by the obligation of delivering his testimony) could not be allowed for: certificate from the master, that such application had frequently been made, and always without success.

The precedent, said Lord Mansfield, would be a dangerous one: since thus, with or without collusion with the witnesses, a plaintiff might, on the occasion of the most trifling claim, load his adversary with a burthen to an unlimited and intolerable amount. But even where contingent (i. e. consequential) damages are out of the question, how excessive and disproportionate may be the burthen thus imposed in the shape of ordinary charges.

What a dilemma! Injustice by denial of justice for want of evidence; or still worse injustice, by vexation and expense on the score of evidence. Is there no middle course? We shall see.

This dilemma,—is it the work of nature?—Now and then, and to a certain degree, yes: but much more frequently, and in a much greater degree, the work of learned art—one of the host of mischiefs produced by the rule by which, and especially at the outset of the cause, the parties stand excluded from the presence of the judge.

[* ]Chapter VII.

[† ]Remedy against deperition of the evidence on the other side,—immediate collection of that same evidence.

Remedy against deperition of the means of satisfaction on the former side,—sequestration, or vadiation in this or that shape, whichsoever, being sufficiently efficient, may be least burthensome.

[* ]Book VIII. Technical System; Chap. X. Sittings at Long Intercals.

[† ]What if, at what is called the trial, when proof came to be given of the matter of fact principally in question in the cause, other evidence in abundance (immediate vivâ voce evidence) being at command,—an advocate were to take upon him to produce, instead of it, this hearsay evidence in the affidavit mode? The thing is impossible: but supposing it done, the judge would suppose him out of his senses, or send him to his horn-book.

[‡ ]Tidd’s Practice, Forms, p. 196.

[* ]Sellon’s Crompton, i. 421.

[† ]Sellon’s Crompton, i. 419. Day v. Samson, Bar. 448.

[* ]This can only occur of necessity, after the jury have been charged to try the indictment in question. Before the jury are actually charged, the court will, up to the very last moment, listen to any application to postpone the trial, either on the part of the prosecutor, or of the prisoner: and such applications are made every day.—Ed.

[* ]See Book V. Circumstantial; Chap. XVI. Improbability, &c.

[* ]Ready-written deposition of a defendant, as extracted by ready-written allegations and interrogations delivered on the part of the plaintiff.—See Book II. Securities.

[* ]For the Author’s farther views on this subject, vide supra, Vol. VI. p. 98.

[* ]Vide infra, Part IV. Vexation; Chap. V. § 2.

[† ]By 2 & 3 Vict. c. 71, the magistrates are to sit in the police courts every day from ten till six.—Ed.

[* ]Book VIII. Technical System; Chap. IX. Blind Fixation of Times.

[* ]See Part VI. Disguised Exclusions; Chap. III. Exclusion put upon indeterminate portions of the matter of Evidence.

[* ]See Book VIII. Chap. X.

[† ]Vide supra, p. 51, Sub-note a.—Ed.

[* ]The multiplicity of parties is no fault of equity. There are no more parties than interests; and there ought not to be fewer. When the cause is in this way to a certain degree complex, common law knows not how to deal with it:—what is done (if anything be done) must be done by equity. But the greater quantity of natural and inevitable delay is afforded by the case, the greater the barbarity in thus making artificial delays to heap upon it.

[† ]The persons and things he looks to as the sources of the evidence he expects to produce, are they at his command? In that case, he is already in a condition fully and determinately to give an inventory of the contents of his side of the budget of evidence. Are they, any of them, in any respect, out of his reach or knowledge? In that case, he stands in need of the arm of justice, to enable him, by means of the investigative process, to hunt out the sources from which (as far as it exists and is attainable) the evidence, the information he looks for, must be made to flow.

[* ]If the cause of action has arisen in India, the superior courts may issue a commission to examine witnesses in India, without the consent of the parties. 13 Geo. III. c. 63. See above, p. 186. As to the equity courts, see 2 Maddock, 405.—Ed.

[* ]In odium spoliatoris is a common-place expression, employed among equity lawyers, to justify any exertion regarded as extraordinary, for the giving redress against fraud.

[* ]See “Defence of Usury,” in Vol. III.

[† ]The reader will observe, that this work was written before the late repeal of the stamp duties on law proceedings [5 Geo. IV. c. 41.] which has been justly deemed one of the most meritorious acts of the present [1826] enlightened administration. The arguments in the text, however, are general, and apply equally to all nations.—Editor.

[* ]The Old Bailey Sessions were superseded by the 4 & 5 Will. IV. c. 36, which established the Central Criminal Court: the sittings are held twelve times a year. The chief metropolitan police court is in Bow Street.—Ed.

[* ]The epithet given by Glanville, who wrote in Henry the Second’s time, to the then new-invented grand assize: a sort of circuit, travelled once in seven years. In other words, a licence for injustice, renewable or not at that period: a remedy which, if worth anything at any time, would have been worth more before the flood than since. Quære, How did the business of justice go on before this grand improvement? Answer: As to times and places, at least, much less badly than at present: for, in those days, the metropolitan courts had not swallowed up the local ones.

[* ]What is perfectly known to all lawyers at present, and to all non-lawyers as soon as they please, is, that the practice of imprisonment for debt is the result of a traffick,a in which the judges of all the common law-courts took a share; and which consisted in selling (on pretences as notoriously false as any swindler was ever punished for) the liberty of the people in the character of defendants, to all persons who (with or without so much as the pretence of title) found their account in the purchase of it.

It may be considered as a particular branch of the slave-trade: with this peculiarity, that the colour of the thing (the person converted into a thing) made no difference. Crowded jails matched with crowded ships: the long vacation, with the long passage.

Not to speak of former struggles; soon after the Restoration, the three great common-law courts in Westminster Hall became so many rival shops. Like other shops, they fought for custom: the liberty of the defendant was the bonus they each of them made itself master of, and offered as a lure to draw in purchasers. It became, consequently, in the hand of each, a weapon with which he fought his rivals.

It was the King’s Bench that began. In criminal suits, of which alone it had been intended by the sovereign that it should have cognizance,b it had been in possession of the undisputed practice, and thence of the right, of enabling the plaintiff (the prosecutor) to consign the defendant (that is, anybody) to prison (a prison of its own) in the first instance, that is, without evidence. The Common Pleas, for which alone of the three courts the cognizance of civil suits had been intended, possessed no such right, unless in a particular and narrow description of causes.

The judges of the King’s Bench formed a scheme for filching custom from their brethren of the Common Pleas. Encouragement was given to plaintiffs to bring false accusations against defendants: accusations, the falsehood of which was completely understood, as well by the judges by whom they were received, as by the plaintiffs by whom they were delivered. On the ground of a false accusation of this sort, the defendant, as of course, went to jail in some cases—was supposed to be in jail in others. Being thus, or being supposed to be, in jail, he was at any rate in the power of the judges, to be dealt with as they pleased: being thus in their power, they suffered any other demand to be brought against him, though it were only of a civil nature. In what cases the man was really in their custody, and in what not, it is impossible for us now to know: it was never intended that we should. The mass of jargon called, in Westminster Hall, by the name of a record, was (as has been so often observed) a mass of jargon in which an indeterminate quantity of truth, in great part useless, was invariably intermixed with an indeterminate mass of falsehood, serving as a screen for whatever injustice it might be deemed profitable and safe to perpetrate. When the man was not in jail, the bonus employed as above to draw custom into the King’s Bench shop, was not made use of: what that shop got for itself, was nothing more than the possibility of selling to customers a branch of juridical service, of which, till then, a monopoly had been possessed by the Common Pleas. But, in the cases in question, the Common Pleas not being in the practice of sending a man to jail; the King’s Bench, in so far as they took upon themselves to send a man to jail in these same cases, gave themselves thereby an advantage (and through themselves to their customer) in which their bretheren on the other side of the hall had as yet no share.

The success of the king himself (in his court at Westminster, where, as all the world knows, he is actually and constantly present) was prodigious: the distress and impoverishment of the king not himself, was proportionable: grass threatened to grow in the Common Pleas. Truth being in equal detestation on all sides of the hall, and the practice of making use of her, either for offence or for defence, equally unknown; the king not himself, after lying a while in the state of the fallen angels, awoke, and, by the help of another falsehood, correctly moulded upon the foregoing one, stood upon his defence.

For details, this is not the place. In substance, the story is of course told or alluded to in the institutional books and books of practice. But in the Memoirs of the Life of the Lord Keeper Guilford (as related by his brother, natural and professional, the Honourable Roger North, one of His Majesty’s counsel, learned in the law,) the whole war, with all its stratagems, is related in considerable detail, and pure of all disguise. The only interests professed to have ever come in view, are the interests of the lawyers—of the partnership in all its branches. Of the interests of the suitors, no more account is taken, or mention made, than, at an auction of a West-India estate, of the interests of the negroes. For the ends or dictates of justice, no more regard is professed on either side, than on either side in the conferences reported by Thucydides between the Athenians and the Melians.

The honourable and learned author was completely in the secret: if any secret there could be said to be, in a business in which causes as well as effects, motives as well as measures, were so completely in the sunshine. It was under the conduct of his right honourable brother, then chief justice of the Common Pleas, that the defensive part of the warfare was carried on:c the success of it is matter of as undisguised a triumph as ever sat on the brow of a King’s Bench or Old Bailey advocate, when relating how, with the aid of his science, a malefactor was rescued from condign punishment by a quibble.

[* ]The distinction between insolvency and bankruptcy, is of a piece with the distinction between realty and personalty, each a source of fraud and vexation to the suitor; each a gold mine to the man of law. Precious distinction! a wall of paper to fraud, a wall of adamant to justice. For the purposes of fraud, every debtor is a bankrupt at pleasure: for (not to speak of sham-traders) who can prevent his being a real one? Every non-trader may be made a bankrupt, for the purpose of fraud; no such person can be made a bankrupt for the purposes of justice.

Ages ago, at the touch of the sceptre which sanctioned the laws of bankruptcy, all distinction between realty and personalty in the hands of the bankrupt vanished. On that ground, no hair-splitting as between person, lands, and goods—sometimes one to be had, sometimes another, sometimes all three (according to the sort of court resorted to, the sort of suit instituted, or process employed,—not to speak of other causes of variation, all equally foreign to the merits,) sometimes half of one, or one and a half:—distinctions, which are all kept up against the creditors of non-traders, and cherished with an affection proportioned to their absurdity, their mischievousness, and their consequent fruitfulness in made business.

Your debtor owes you two thousand pounds. Moveable or other personal property not worth recurring to: land or other real property worth a thousand pounds: his body out of the reach of justice. Of his thousand pounds you may have half, and but half:—Why? Answer:—Because, had you and he lived three or four hundred years ago, it might (unless he were an old man, or an old woman, or a young one, or a child, with a dozen or two of other exceptions, not one of them taken into account) it might have been of use to the purposes of national defence that your debtor should keep in his hands half the property, the whole of which should have been yours: keep it, lest the monarch should want men to attend him in his wars. Even in its prime, the reason was a foolish one: the fund bearing no sort of proportion to the purposes by which in pretension it was designed: and when creditor A had cut off his half, creditor B would come and halve that half, and so on, alphabet upon alphabet, in any number. But at each division the use of the lawyer’s knife was to be bought, bought at his own price: and there lurks the real reason at the bottom of the ostensible one.

a But a reason which at one time had a shadow of utility, though even that shadow is no more, is of the best and rarest sort. Expect not anything like it but on great occasions.

[* ]The iniquity of this rule has forced the judges to take upon themselves the responsibility of allowing to the prosecutor a sum of money under the name of expenses:a this, however, they do or leave undone as they please: consequently the most frivolous reasons frequently suffice for leaving it undone. It is asserted in the eighty-fourth number of the Edinburgh Review, p. 403, that, in a recent case, a judge refused to allow the prosecutor his expenses, because one of the witnesses for the prosecution offended him by his demeanour.—Editor.

[† ]The following is another exception to the reimbursement of expenses:—

“When a party,” says Phillips,b “after obtaining leave by consent, examines witnesses abroad on depositions, he will not be entitled to any allowance, in the taxation of costs, for the expense of taking the depositions, although he may proceed in the action.c The same rule prevails in the Court of Chancery: if a party applies to that court for a commission to examine witnesses, he must pay the expenses.”

[* ]A case that happened within these fifty yearsa will serve at once to show the demand for a discretionary remedial power to be exercised by the judge, and the oscitancy of English law.

Action in the King’s Bench at Westminster: two of plaintiff’s witnesses, a captain and first lieutenant of a French merchantman, brought over from France: these two witnesses, if the affidavit of the real plaintiff (a Frenchman) was to be believed, had been appointed each of them as supercargo to a French East-Indiaman, which appointment they had both foregone, and he, as he believed, would have to indemnify them for the loss. Profits a stated allowance, five per cent on the voyage outward, ditto on the homeward, besides provisions and other advantages. Value of each cargo, say £50,000: this gives loss to each above £5,000: to both £10,000.

The appointment, if real, was probably made only to give colour to the demand: for what power was there capable of stopping them? But, if the loss was not really sustained, that, or a greater, might, in that same shape, come to be sustained. The cause was an insurance cause: the value at stake might therefore have been sufficient to cover even so great a loss. But suppose the value at stake no more than a few pounds: shall it be in the power of a man, in the character of plaintiff, to subject his adversary, as it were in a parenthesis, to a loss of £10,000, in addition to (suppose)£5, the amount of the satisfaction due?

The master, the subordinate judge by whom all questions concerning costs are determined, and (as it is very fit they should be) without a jury, disallowed this claim of indemnity: but what he did allow was, the expense attached to the voyage and journey and witnesses of these two witnesses to and fro between France and England.

Reference made by the court (Lord Mansfield the chief justice) to a rule spoken of as established, viz. that contingent damages (meaning damages occasioned to a witness by the obligation of delivering his testimony) could not be allowed for: certificate from the master, that such application had frequently been made, and always without success.

The precedent, said Lord Mansfield, would be a dangerous one: since thus, with or without collusion with the witnesses, a plaintiff might, on the occasion of the most trifling claim, load his adversary with a burthen to an unlimited and intolerable amount. But even where contingent (i. e. consequential) damages are out of the question, how excessive and disproportionate may be the burthen thus imposed in the shape of ordinary charges.

What a dilemma! Injustice by denial of justice for want of evidence; or still worse injustice, by vexation and expense on the score of evidence. Is there no middle course? We shall see.

This dilemma,—is it the work of nature?—Now and then, and to a certain degree, yes: but much more frequently, and in a much greater degree, the work of learned art—one of the host of mischiefs produced by the rule by which, and especially at the outset of the cause, the parties stand excluded from the presence of the judge.

[* ]What is perfectly known to all lawyers at present, and to all non-lawyers as soon as they please, is, that the practice of imprisonment for debt is the result of a traffick,a in which the judges of all the common law-courts took a share; and which consisted in selling (on pretences as notoriously false as any swindler was ever punished for) the liberty of the people in the character of defendants, to all persons who (with or without so much as the pretence of title) found their account in the purchase of it.

It may be considered as a particular branch of the slave-trade: with this peculiarity, that the colour of the thing (the person converted into a thing) made no difference. Crowded jails matched with crowded ships: the long vacation, with the long passage.

Not to speak of former struggles; soon after the Restoration, the three great common-law courts in Westminster Hall became so many rival shops. Like other shops, they fought for custom: the liberty of the defendant was the bonus they each of them made itself master of, and offered as a lure to draw in purchasers. It became, consequently, in the hand of each, a weapon with which he fought his rivals.

It was the King’s Bench that began. In criminal suits, of which alone it had been intended by the sovereign that it should have cognizance,b it had been in possession of the undisputed practice, and thence of the right, of enabling the plaintiff (the prosecutor) to consign the defendant (that is, anybody) to prison (a prison of its own) in the first instance, that is, without evidence. The Common Pleas, for which alone of the three courts the cognizance of civil suits had been intended, possessed no such right, unless in a particular and narrow description of causes.

The judges of the King’s Bench formed a scheme for filching custom from their brethren of the Common Pleas. Encouragement was given to plaintiffs to bring false accusations against defendants: accusations, the falsehood of which was completely understood, as well by the judges by whom they were received, as by the plaintiffs by whom they were delivered. On the ground of a false accusation of this sort, the defendant, as of course, went to jail in some cases—was supposed to be in jail in others. Being thus, or being supposed to be, in jail, he was at any rate in the power of the judges, to be dealt with as they pleased: being thus in their power, they suffered any other demand to be brought against him, though it were only of a civil nature. In what cases the man was really in their custody, and in what not, it is impossible for us now to know: it was never intended that we should. The mass of jargon called, in Westminster Hall, by the name of a record, was (as has been so often observed) a mass of jargon in which an indeterminate quantity of truth, in great part useless, was invariably intermixed with an indeterminate mass of falsehood, serving as a screen for whatever injustice it might be deemed profitable and safe to perpetrate. When the man was not in jail, the bonus employed as above to draw custom into the King’s Bench shop, was not made use of: what that shop got for itself, was nothing more than the possibility of selling to customers a branch of juridical service, of which, till then, a monopoly had been possessed by the Common Pleas. But, in the cases in question, the Common Pleas not being in the practice of sending a man to jail; the King’s Bench, in so far as they took upon themselves to send a man to jail in these same cases, gave themselves thereby an advantage (and through themselves to their customer) in which their bretheren on the other side of the hall had as yet no share.

The success of the king himself (in his court at Westminster, where, as all the world knows, he is actually and constantly present) was prodigious: the distress and impoverishment of the king not himself, was proportionable: grass threatened to grow in the Common Pleas. Truth being in equal detestation on all sides of the hall, and the practice of making use of her, either for offence or for defence, equally unknown; the king not himself, after lying a while in the state of the fallen angels, awoke, and, by the help of another falsehood, correctly moulded upon the foregoing one, stood upon his defence.

For details, this is not the place. In substance, the story is of course told or alluded to in the institutional books and books of practice. But in the Memoirs of the Life of the Lord Keeper Guilford (as related by his brother, natural and professional, the Honourable Roger North, one of His Majesty’s counsel, learned in the law,) the whole war, with all its stratagems, is related in considerable detail, and pure of all disguise. The only interests professed to have ever come in view, are the interests of the lawyers—of the partnership in all its branches. Of the interests of the suitors, no more account is taken, or mention made, than, at an auction of a West-India estate, of the interests of the negroes. For the ends or dictates of justice, no more regard is professed on either side, than on either side in the conferences reported by Thucydides between the Athenians and the Melians.

The honourable and learned author was completely in the secret: if any secret there could be said to be, in a business in which causes as well as effects, motives as well as measures, were so completely in the sunshine. It was under the conduct of his right honourable brother, then chief justice of the Common Pleas, that the defensive part of the warfare was carried on:c the success of it is matter of as undisguised a triumph as ever sat on the brow of a King’s Bench or Old Bailey advocate, when relating how, with the aid of his science, a malefactor was rescued from condign punishment by a quibble.

[* ]The distinction between insolvency and bankruptcy, is of a piece with the distinction between realty and personalty, each a source of fraud and vexation to the suitor; each a gold mine to the man of law. Precious distinction! a wall of paper to fraud, a wall of adamant to justice. For the purposes of fraud, every debtor is a bankrupt at pleasure: for (not to speak of sham-traders) who can prevent his being a real one? Every non-trader may be made a bankrupt, for the purpose of fraud; no such person can be made a bankrupt for the purposes of justice.

Ages ago, at the touch of the sceptre which sanctioned the laws of bankruptcy, all distinction between realty and personalty in the hands of the bankrupt vanished. On that ground, no hair-splitting as between person, lands, and goods—sometimes one to be had, sometimes another, sometimes all three (according to the sort of court resorted to, the sort of suit instituted, or process employed,—not to speak of other causes of variation, all equally foreign to the merits,) sometimes half of one, or one and a half:—distinctions, which are all kept up against the creditors of non-traders, and cherished with an affection proportioned to their absurdity, their mischievousness, and their consequent fruitfulness in made business.

Your debtor owes you two thousand pounds. Moveable or other personal property not worth recurring to: land or other real property worth a thousand pounds: his body out of the reach of justice. Of his thousand pounds you may have half, and but half:—Why? Answer:—Because, had you and he lived three or four hundred years ago, it might (unless he were an old man, or an old woman, or a young one, or a child, with a dozen or two of other exceptions, not one of them taken into account) it might have been of use to the purposes of national defence that your debtor should keep in his hands half the property, the whole of which should have been yours: keep it, lest the monarch should want men to attend him in his wars. Even in its prime, the reason was a foolish one: the fund bearing no sort of proportion to the purposes by which in pretension it was designed: and when creditor A had cut off his half, creditor B would come and halve that half, and so on, alphabet upon alphabet, in any number. But at each division the use of the lawyer’s knife was to be bought, bought at his own price: and there lurks the real reason at the bottom of the ostensible one.

a But a reason which at one time had a shadow of utility, though even that shadow is no more, is of the best and rarest sort. Expect not anything like it but on great occasions.

[a ]The Editor of the original edition is here mistaken. The judges never took upon themselves the responsibility of allowing any expenses. Hale (2.282) complained of the want of power in the judges to allow such expenses, as a great defect in our judicial system. The 25 Geo. II. c. 36 allowed certain expenses to the prosecutor, and the 27 Geo. II. c. 3 did the same to the witnesses for the crown; but a condition precedent was, that the prisoner should be convicted. This unjust provision was repealed by the 18 Geo. III. c. 19, which allows the expenses whether the prisoner is convicted or acquitted. The 58 Geo. III. c. 70 was also passed for the purpose of regulating the expenses of prosecutors and witnesses. But as none of these acts extended to misdemeanours, they were all repealed by the 7 Geo. IV. c. 64, which grants expenses in all cases of felony, and in certain cases of misdemeanour. The judges have undoubtedly a discretion, and very properly so; for it now and then happens, that a witness swears falsely, keeps back the truth, or wilfully prevaricates. Sometimes a witness has had some participation in the crime of the prisoner, as where he has purchased the stolen property of him under suspicious circumstances. In all such cases it is usual to disallow the expenses. It may be doubted if the case referred to in the Edinburgh Review ever happened. If a witness misconducts himself in the box,—presents himself in a state of intoxication,—makesuse of indecent expressions, or otherwise insults the court, he is punished as for contempt of court, by the disallowance of his expenses; but this would in no way affect any other witness, or the prosecutor, unless they were also guilty of similar improprieties.—Ed.

[b ]Vol. i. p. 14.

[c ]“Stephens v. Crichton, 2 East, 259. Taylor v. R. Exch. As. Col. 8 East, 393.”

[a ]Thelusson v. Staples, 20 G. 3. Dougl. 438, in Hullock, 438.

[a ]The practice to which this bears reference, has been radically altered by 1 & 2 Vict. c. 110.—Ed.

[b ]For the indeterminateness of the distinction between civil and criminal, see above: meantime they may serve, like x and y in algebra, to designate quantities, of which, at the outset nothing more is known than that they are both undefined, and that they are supposed to be different from each other.

[c ]Vide supra, p. 285, note †.—Ed.

[a ]Vide supra, p. 306, sub-note b.