The Online Library of Liberty

A project of Liberty Fund, Inc.

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

CHAPTER 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.

PART III.

VIEW OF THE CASES IN WHICH EVIDENCE HAS IMPROPERLY BEEN EXCLUDED ON THE GROUND OF DANGER OF DECEPTION.*

[† ]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.

[* ]For the Author’s further remarks on this subject, see Vol. VI. p. 105, et seq.

[* ]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 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.