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

CHAPTER IX.

ULTERIOR SAFEGUARDS AGAINST THE INCONVENIENCIES WHICH MAY PRESENT THEMSELVES AS LIABLE TO ARISE FROM THE ABOLITION OF THE EXCLUSIONARY RULES.

Panic terrors, genuine and counterfeit, are among the life-guards of abuse. From reform, be it what it may, fears are professed by sharp-sighted hypocrites—fears are felt and entertained by their weak-sighted dupes. Knavery presents the phantasmagoric magnifying glass; and it is through this medium that danger is viewed by the eye of imbecility.

Anything which, in the case of the reforms here proposed, may contribute to allay the accompanying apprehension, is deserving of notice.

The safeguards here in view may be ranked in the first place under two heads:—1. Safeguards against deception and consequent misdecision; 2. Safeguards against vexation, in so far as unnecessary and unprofitable.

Under either head may again be distinguised—1. Such as exist or would take place of themselves, but may notwithstanding be pointed out to good purpose, as being liable to be overlooked; 2. Such as, though not at present in existence, nor of a nature to take place of themselves, might (as it seems) be established to good purpose, and may therefore be considered as eventually waiting to be established.

Under the head of existing safeguards, the following may be worth noticing:—

One ground of alarm may be, the danger of mendacity, and consequent deception and misdecision, from the giving an unlimited admission to the testimony of the plaintiff.

By way of antispasmodic against the terrors from this source, it may be proper on this occasion to bring to mind once more the testimony of experience, certifying that, in so many cases, where, by the reason of the most cogent interests, the mendacity-promoting force has been at its highest pitch, no symptoms of mischief from this source have ever been discernible: habitual and professional depredators, delivering their testimony against accomplices, under the temptation offered by impunity instead of capital punishment, with the addition of pecuniary rewards to an amount far beyond what are usually offered to individuals at large. These are rewards earnible by truth as well as by falsehood. But rewards, equally offered, and not earnible but by mendacity, are the rewards by which servants in trade, who have goods to deliver from traders, their masters, to customers, are invited to steal the goods, and then by their testimony charge the customer with the receipt of them—the customer, whose true testimony cannot be opposed to their mendacious evidence.

Lawyer. The defendant will stand exposed to whatever danger is attached to the admission of the testimony of the plaintiff.

Non-Lawyer. Good: but while, from the admission given to him, the plaintiff derives the faculty of delivering false testimony to the prejudice of the defendant,—so, by the admission given to the testimony of the defendant, does the defendant derive the faculty of defending himself, for which, by the supposition, the simple truth is sufficient. Truth opposing herself to the plaintiff, truth giving her support to the defendant,—plaintiff and defendant being in other respects on equal terms,—in favour of which side lie the odds?

Lawyer. But a case that in reality will frequently happen, is, that the matter of fact, notwithstanding the consequences of it with relation to the interests of the defendant, has not fallen under his cognizance. If, the defendant having been wounded, it be by your hand that the wound has been inflicted, it can scarcely happen but that the fact must have fallen within your knowledge. But if it has been by the teeth of a dog of yours, or by the horns of a bull of yours, this may as well have happened, you being at a hundred miles distance, as in your presence. The plaintiff being predisposed to lie, and having his choice of lies, his care will be, that in the scene he feigns, you, the defendant, shall not be one of the actors.

Non-Lawyer. Doubtless this will be his best policy; just as, under your own established and therefore faultless system, were the tradesman’s servant to steal the goods, and then swear he had delivered them to the customer, it would be better policy to suppose them delivered at his house out of his presence, than in his presence; although the testimony of the customer, to whose loss the theft and the perjury are committed, would not be admitted to contest it.

But, the door being, by the supposition, as completely open to the testimony of the defendant as to that of the plaintiff, and the fact on which the plaintiff grounds his claim being by the supposition a fact altogether false,—the case will be, that the defendant, if he contests the claim, believes the fact to be false. Under whatever sanction, therefore (call it oath, call it what else you will,) the plaintiff affirms, contrary to truth, his persuasion of the existence of the fact, the defendant will of course affirm his persuasion of the non-existence of it. Here, then, it must be confessed, we have a danger of deception, as we have in all cases in which testimony is admitted. But the plaintiff’s story, being by the supposition an utter falsehood, has everything to fear from scrutiny, from counter-interrogation, from whatever counter-evidence can be afforded by circumstances; while the assertion of the defendant, being true, can find nothing to oppose it from either of these sources.

Now observe how the matter stands under your system. Innumerable are the instances in which the fact constitutive of a right on the part of Titius, being true, would be testified and put beyond doubt by the testimony of Titius, if, Titius being plaintiff, his testimony were admitted. In perhaps the greater number of these instances, the fact being as well known to the defendant as to the plaintiff, and the defendant not being disposed to be at the expense of perjury to save paying what in justice he ought to pay, he would do one of two things: if the fact had fallen within his cognizance, he would confess it; if the fact had not fallen under his cognizance, yet, hearing it sworn to by the plaintiff, and not looking upon the plaintiff as a man who would perjure himself, he would not, upon his oath, declare his disbelief of the statement sworn to on the other side.

Now what does your system in this case? To the evil-doer it insures success and triumph, without peril of perjury, or expense of litigation: to the innocent and injured, it ensures loss, without hope of safety—injury, without the possibility of self-defence.

Lawyer. Well, and what then? He should have been wiser. It should have been his care to have provided himself with legal evidence.

Non-Lawyer. His care! Yes: but can it be a secret to you, that in many cases such provision would be impossible? that in others the precaution would be resented as an insult, and the transaction itself (the contract, or whatever it be) out of which the right arises, be by that means rendered impossible? And suppose him (like Duke and no Duke) never to travel without a train of witnesses at his heels: have you any secret you could supply him with, to enable him to keep them alive at pleasure?

He should have provided himself with legal evidence! Do you and yours, from the lowest to the highest of you, know what legal evidence is? Would you let him know, if you did? Did you ever, with your own goodwill, do anything towards letting men know what (on this subject or on any other) the law—the law which you every day compose on pretence of declaring it—is? Have you ever ceased to do whatever was in your power to prevent all such knowledge from being attainable—to keep all such knowledge out of their reach?

The system which the suitor supposes to be established—the system on the confidence of which he acts, is the system declared to him by domestic experience, right reason, and common sense. This system he sees pursued, even by you and yours, in some cases: deceived by your indefatigable self-eulogiums, he concludes it to be pursued in all cases. Your exceptions, extensive and numerous as they are, how should he divine them? To give himself the least chance for it, it would be necessary for him, at the outset, to begin with discarding his ordinary guides, common honesty and common sense.

Here may be the place to observe once more, that the utmost danger which can be apprehended from the treest admission of self-serving testimony on both sides, is inferior, far inferior, to that which, under the technical system, has place in every day’s practice. In all cases, from the most lightly to the most heavily penal (personal injuries, acts of depredation, acts of malicious destruction,) where an injury by which an individual is the immediate sufferer is treated on the footing of a crime,—the testimony of the party injured (testifying under the influence of an interest in the strictest sense pecuniary, viz. that constituted by costs,—and always under the smart of the injury, be it what it may,) is admitted under the name of evidence: and under the sort of sanction reserved for those declarations which are received under the name and on the footing of evidence,—the sanction of an oath, fortified by the eventual punishment attached to the breach of it: while, on the other side (the defendant’s,) though, under the name of the defence, the party, if present (which in slightly penal causes it is not necessary that he should be,) cannot be prevented from saying what he thinks fit,—yet, what he does say, not being corroborated by the sanction of an oath, nor being subjectable to counter-interrogation, is not received under the name nor on the footing of evidence.

What is to the present purpose, is this question:—If no mischief is experienced from the partial admission of self-serving testimony, the admission of it on the plaintiff’s side—on that side on which (as hath been seen) it is most dangerous,—can any greater danger be reasonably apprehended from the impartial admission of it, from the unreserved admission of it on both sides?

The above observations on the safeguards which already exist, may suffice to dispel all vague fears that great prejudice to justice would result from the abolition of the exclusionary rule.

An ulterior safeguard, which is not, but which might be, and ought to be established, is the registration of evidence.

By the registration of evidence, I do not mean the committing of the evidence to writing in terminis; but merely the making a memorandum of the species and nature of the evidence, under apposite heads.

The immediate use is, to show, on the occasion, the strength of each article of evidence: to indicate the strength of it, as far as the denomination to which it belongs, and under which it is entered, may be conducive to that purpose.

The ulterior use is, to put a mark of distinction upon every cause in which, on the side in favour of which the decision was pronounced, the mass of evidence was, in point of strength, in any respect below the ordinary standard.

The ultimate use is, to indicate, not indeed the exact quantity of the mischief (for when there is none, none can be indicated,) but the maximum of the mischief which, in the way of misdecision, under any head of infirmity or suspicion, can have owed its birth to the abolition of the exclusionary rule:—1. Judgment for the plaintiff. Evidence for the plaintiff, none but the plaintiff’s testimony. Evidence for the defendant, none but the defendant’s testimony. 2. Judgment for the defendant: state of the evidence the same. 3. Judgment again for the plaintiff. Evidence of the plaintiff delivered by him, or not delivered: the fact (the collative, or say investitive, fact, by which the right in question was conferred on him) not having fallen within his cognizance, nor any other fact serving for proof of it in the way of circumstantial evidence. Extraneous witness, Matthew Martyr: his testimony exposed to suspicion by interest derived from relationship,—he being husband, son, father, brother, partner, servant, master, to the plaintiff; or by specific pecuniary interest, in such or such a way; or by improbity, as evidenced by his having been convicted of such or such an offence.

Ulterior details might, in this place, be regarded as superfluous and premature: what is above will serve for an indication of the ends to which the proposed arrangement is directed. To frame an apposite system of book-keeping, whereby, for each cause, the labour of registration could be reduced within the compass of a few words, would be a consequential task, and not a difficult one.

I speak of the system of registration as exhibiting the maximum of mischief from deception and consequent misdecision having infirmity of evidence for its cause. I say the maximum; it being understood that, supposing in every cause the decision given in favour of that side of the cause on which the evidence was thus defective to have been erroneous, the greatest number of causes in which this error—error from this source—could have taken place, is thus brought to view. But so it may be, that in no one of all those instances was the decision erroneous: still, in this case, the word maximum is not less apposite than if the decision was erroneous in all those instances.

On the present occasion, in speaking of infirm and suspectable evidence, those causes alone of inferiority need be thought of, that have been brought directly to view in the course and for the purpose of the present work. In a system of registration, in so far as adapted to the end here in question, the several other causes of infirmity would be equally entitled to a place. The heads being expressed by apposite denominations,—the operation of making, on the occasion of such cause, the several entries under those several heads, would present little difficulty. Mercantile book-keeping, an art which, under the existing system of nomenclature, is clouded and perplexed by obscure and unexplained fictions, presents much more.*

Lawyer. What! more records? and have we not records enough already? and is there not enough in them? and is there to be nothing said about John Doe and Richard Roe? and do you mean to confound the distinction between courts of record and courts not of record?

Non-Lawyer. To make answer to your questions, the matter of your records may be divided into three portions:—1. Sheer lies; 2. Impertinent and useless truths; 3. Instructive truths. The instructive truths—that is, heads for the reception of these—it is our wish to preserve; though it would require a microscopic eye to spy them out: and if they were of iron, so much the better, because in that case a magnet would save time and scrutiny.

Of the sheer lies and impertinent truths, I agree with you that there is enough already, and therefore it is we propose that no further additions shall be made to that part of the stock. If your relish for the dish remainafter the odor lucri has evaporated, you know where there is enough for it.

Courts of record—courts not of record! A precious distinction, truly! A precious end it aims at—and a precious use has been made of it! Know you then of that judge, whose operations will be likely to be better secured against error (designed and undesigned)—against needless delay, expense, and vexation, by the assurance that they will be buried in oblivion? Can there be so much as a pretence for omitting to perpetuate the memory, of everything that passes (except the verbiage of advocates and parties,) unless it be the little importance of the cause, compared with the delay, expense, and vexation, attached to the registration of it? And do you not know, that the use aimed at by the distinction, and by the consequences grounded on it, were to secure the judges that invented it against the competition of judges below them, and on one side of them? and that, among the civil courts not of record, the equity courts—the courts which reject, as “beneath their dignity,” all causes of less than £10 value—are at the head of the list?

So much as to the safeguards against misdecision. For the avoidance of unnecessary vexation, an important maxim remains to be brought to view.

I suppose the ends of justice substituted to the ends of judicature. I suppose hypocrisy unmasked. I suppose honest eyes opened, imbecility in honest guidance. I suppose the door thrown wide open, not only to all willing testimony, but to all lights that are to be elicited from interrogatories administered to unwilling testimony: to unwilling testimony, whatsoever be the now terrible, the now tremendous, fruits of it: lights collected without reserve, from unwilling witnesses, although the result should be the diminishing the multitude of misdeeds of all kinds, and diminishing (if English lawyers and their dupes endure to see it diminished) the barbarity, as well as imbecility, of their penal code.

In throwing open the door to self-criminative evidence, one exception, though but a temporary, and thence a limited and continually expiring one, would require to be made. No admission of such evidence against offences anterior to the promulgation of the law: the reform should not be retrospective.

The reason is almost too obvious to bear mentioning. Transgressions already committed are beyond the reach of prevention: punishment would be misery in waste.

Not that, because the case were called a criminal one, there would be anything gained to general utility by extending the provision to the exclusion of satisfaction on the score of injury; viz. where the author of the injury cannot be a loser but the sufferer by it must be (and to the same amount) a gainer. But under the existing technical system, such is the structure of the established forms, that if the examination of the defendant remained forbidden to the one purpose, it would remain alike forbidden to the other.

To the abuse here in question, no correction would, could, or ought to be administered, but in the way of statute law. To render the correction retrospective, would include in it an operation of ex post facto law. Legislators shrink with uniform horror from the idea of such injustice. Jurisprudential law, from first to last, was formed by it. Not a step can she take on any fresh ground—not a fresh step can she take in any direction, that is not stained by injustice of this description.

[* ]Thus much being said of one part of the proposed system of judicial book-keeping, a word or two, for the purpose of sketching out a general idea of the remainder, may perhaps not appear misemployed. Suggested by a collective view of all the ends of justice, the system, taken in both its parts, embraces in its design all these several ends.

Of the part here more particularly in question, the object is to prevent misdecision: it accordingly presents continually to the view of the legislator the several quarters in which the seeds of misdecision seem to be most apt to lurk.

Of the remaining part, the object is to prevent needless and avoidable delay, vexation, and expense. Taking, therefore, for the standard quantity of that mass of collateral inconvenience, the quantity which experience has shown to be sufficient in a vast majority of the whole number of causes of all sorts,—it calls upon the judge, in each instance in which that standard quantity has been exceeded, to point out, by apposite entries under apposite heads, in his view of the matter, the cause by which such excess has been necessitated, or at any rate produced.

Of the established system of mercantile book-keeping, the object in view is to enable the individual whose transactions it is employed to record, to ascertain at any time the balance as between the amount of assets and debts due, with the amount of profit or loss from each source; for the purpose of raising to its maximum the aggregate of the one, and reducing to its minimum the aggregate of the other: not to speak of other subordinate objects foreign to the present purpose.

Of a rational and honest system of judicial book-keeping (not to speak here of the uses to individuals in the character of suitors, or of the uses to the judge,) the uses to the legislator would be, to enable him to reduce to its minimum the aggregate amount of misdecision and failure of justice on the one hand—of judicial delay, expense, and vexation, on the other: and this by indicating in each instance (in so far as it is susceptible of indication) the maximum, and, if possible, the actual amount, of each individual mischief produced on each occasion; with the cause, so far as it may be discernible.

Of the actually existing system of judicial registration and non-registration (for omissions have their effect, and their use,) as established by and under the technical and fee-gathering system, what true account can a man find to give? That the effect of it has been, most certainly, and the design of it almost as certainly, to enable the masters and journeymen of the justice-shop to cheat and deceive their customers.

Of the natural and inevitable causes of complication (which is as much as to say, of an extra degree of expense, vexation, and delay,) a collective, and it is supposed pretty complete, view is given in a Table annexed to another work (Scotch Reform, in Vol. V. of this collection:) and along with them, for illustration, under each cause, a set of examples, exhibiting the suits of different descriptions in which it is most apt to have place. A certain portion of time (and that happily a very short time) pointed out by experience, is taken for the standard: these are called simple causes. To this standard all other causes are referred: they are called complex causes. Taking any given individual cause,—if the length of time it occupies extend considerably beyond that standard length—if it be of such a length as to require adjournment, the demand for the extra length must have for its cause some one or more of the causes enumerated in the Table. These causes being all foreknown, and previously understood and ranged in the form of a table—the judge, as his warrant for the adjournment he puts upon it, makes a memorandum of the existence of such cause or causes: each party at the same time being called upon to annex to such indication a memorandum of the assent to, or dissent from, the matter of fact asserted by it.