Law is a bottomless pit: John Bull was flattered by the lawyers that his suit would not last above a year; yet ten long years did Hocus steer his cause through all the meanders of the law, and all the courts.
A wise king must do less in altering his laws than he may; for new government is ever dangerous; it being true in the body politic as in the corporal, that omnis subita immutatio est periculosa: and though it be for the better, yet it is not without a fearful apprehension; for he that changeth the fundamental laws of a kingdom thinketh there is no good title to a crown but by conquest.
The tenure in chief is the very root that doth maintain this silver stem, that by many rich and fruitful branches spreadeth itself: so if it be suffered to starve, by want of ablaqueation, and other good husbandry, this yearly fruit will much decrease.
It has been said that the law of England derived the doctrine of charitable uses from the Roman Civil Law. Lord Thurlow has said it, and there are others who have said the same thing. It is by no means clear. It may very well be doubted. It is not worth the time necessary for the investigation. One of the worst doctrines, as formerly understood in England, the doctrine of Cy-pres, has been derived from the Roman law, and perhaps little else. Constantine certainly sanctioned what are called pious uses. A successor, Valentinian, restrained donations to churches, without disturbing donations to the poor; and Justinian abolished the restraint, and confirmed and established such uses generally and forever.
Horace Binney: Argument Vidal v. the City of Philadelphia, 1844, 26.
But that a science, which distinguishes the criterions of right and wrong; which teaches to establish the one, and prevent, punish, or redress the other; which employs in its theory the noblest faculties of the soul, and exerts in its practice the cardinal virtues of the heart; a science, which is universal in its use and extent, accommodated to each individual, yet comprehending the whole community; that a science like this should ever have been deemed unnecessary to be studied in an university, is matter of astonishment and concern.
Sir William Blackstone: Introduc. to his Commentaries, Sec. I.
I think it an undeniable position, that a competent knowledge of the laws of that society in which we live, is the proper accomplishment of every gentleman and scholar; an highly useful, I had almost said essential, part of liberal and polite education. And in this I am warranted by the example of ancient Rome; where, as Cicero informs us, the very boys were obliged to learn the twelve tables by heart, as a carmen necessarium, or indispensable lesson, to imprint on their tender minds an early knowledge of the laws and constitution of their country.
Sir William Blackstone: Commentaries: On the Study of the Law.
Law, in its must general and comprehensive sense, signifies a rule of action; and is applied indiscriminately to all kinds of action, whether animate or inanimate, rational or irrational. Thus, we say, the laws of motion, of gravitation, of optics, or mechanics, as well as the laws of nature and of nations. And it is that rule of action which is prescribed by some superior, and which the inferior is bound to obey.
Sir William Blackstone: Commentaries: Of the Nature of Laws in General.
Considering the Creator only as a being of infinite power, he was able unquestionably to have prescribed whatever laws he pleased to his creature, man, however unjust or severe. But, as he is also a being of infinite wisdom, he has laid down only such laws as were founded in those relations of justice that existed in the nature of things antecedent to any positive precept. These are the eternal immutable laws of good and evil, to which the Creator himself, in all his dispensations, conforms; and which he has enabled human reason to discover, so far as they are necessary for the conduct of human actions.
Such, among others, are these principles: that we should live honestly, should hurt nobody, and should render to every one his due; to which three general precepts Justinian has reduced the whole doctrine of law.
Sir William Blackstone: Commentaries: Of the Nature of Laws in General.
We found, or we thought we found, an inconvenience in having every man the judge of his own cause. Therefore judges were set up, at first, with discretionary powers. But it was soon found a miserable slavery to have our lives and properties precarious, and hanging upon the arbitrary determination of any one man, or set of men. We fled to laws as a remedy for this evil. By these we persuaded ourselves we might know with some certainty upon what ground we stood. But lo! differences arose upon the sense and interpretation of these laws. Thus we were brought back to our old incertitude.
New laws were made to expound the old; and new difficulties arose upon the new laws; as words multiplied, opportunities of cavilling upon them multiplied also. Then recourse was had to notes, comments, glosses, reports, responsa prudentum, learned readings: eagle stood against eagle: authority was set up against authority. Some were allured by the modern, others reverenced the ancient. The new were more enlightened, the old were more venerable. Some adopted the comment, others stuck to the text. The confusion increased, the mist thickened, until it could be discovered no longer what was allowed or forbidden, what things were in property, and what common. In this uncertainty (uncertain even to the professors, an Egyptian darkness to the rest of mankind) the contending parties felt themselves more effectually ruined by the delay than they could have been by the injustice of any decision. Our inheritances are become a prize for disputation; and disputes and litigations are become an inheritance.
The delay of the law is, your lordship will tell me, a trite topic, and which of its abuses have not been too severely felt not to be complained of? A mans property is to serve for the purposes of his support; and therefore, to delay a determination concerning that, is the worst injustice, because it cuts off the very end and purpose for which I applied to the judicature for relief. Quite contrary in the case of a mans life: there the determination can hardly be too much protracted. Mistakes in this case are as often fallen into as many others; and if the judgment is sudden, the mistakes are the most irretrievable of all others. Of this the gentlemen of the robe are themselves sensible, and they have brought it into a maxim. De morte hominis nulla est cunctatio longa. But what could have induced them to reverse the rules, and to contradict that reason which dictated them, I am utterly unable to guess.
I remove my suit; I shift from court to court; I fly from equity to law, and from law to equity; equal uncertainty attends me everywhere; and a mistake in which I had no share decides at once upon my liberty and property, sending me from the court to a prison, and adjudging my family to beggary and famine. I am innocent, gentlemen, of the darkness and uncertainty of your science. I never darkened it with absurd and contradictory notions, nor confounded it with chicane or sophistry. You have excluded me from any share in the conduct of my own cause; the science was too deep for me; I acknowledged it; but it was too deep even for yourselves: you have made the way so intricate that you are yourselves lost in it; you err, and you punish me for your errors.
A point concerning property, which ought, for the reasons I have just mentioned, to be most speedily decided, frequently exercises the wit of successions of lawyers, for many generations. Multa virûm volvens durando sæcula vincit. But the question concerning a mans life, that great question in which no delay ought to be counted tedious, is commonly determined in twenty-four hours at the utmost. It is not to be wondered at that injustice and absurdity should be inseparable companions.
We are tenants at the will of these gentlemen for everything; and a metaphysical quibble is to decide whether the greatest villain breathing shall meet his deserts or escape with impunity, or whether the best man in the society shall not be reduced to the lowest and most despicable condition it affords. In a word, my lord, the injustice, delay, puerility, false refinement, and affected mystery of the law are such, that many who live under it come to admire and envy the expedition, simplicity, and equality of arbitrary judgments.
Ask of politicians the end for which laws were originally designed, and they will answer that the laws were designed as a protection for the poor and weak against the oppression of the rich and powerful. But surely no pretence can be so ridiculous: a man might as well tell me he has taken off my load, because he has changed the burden. If the poor man is not able to support his suit, according to the vexatious and expensive manner established in civilized countries, has not the rich as great an advantage over him as the strong has over the weak in a state of nature?
To the solid establishment of every law two things are essentially requisite: first, a proper and sufficient human power to declare and modify the matter of the law; and next, such a fit and equitable constitution as they have a right to declare and render binding. With regard to the first requisite, the human authority, it is their judgment they give up, not their right. The people, indeed, are presumed to consent to whatever the legislature ordains for their benefit; and they are to acquiesce in it, though they do not clearly see into the propriety of the means by which they are conducted to that desirable end. This they owe as an act of homage and just deference to a reason which the necessity of government has made superior to their own.
It would be hard to point out any error more truly subversive of all the order and beauty, of all the peace and happiness of human society, than the position that any body of men have a right to make what laws they please,or that laws can derive any authority from their institution merely, and independent of the quality of the subject-matter. No arguments of policy, reason of state, or preservation of the constitution can be pleaded in favour of such a practice.
In reality there are two, and only two, foundations of law; and they are both of them conditions without which nothing can give it any force: I mean equity and utility. With respect to the former, it grows out of the great rule of equality, which is grounded upon our common nature, and which Philo, with propriety and beauty, calls the mother of justice. All human laws are, properly speaking, only declaratory; they may alter the mode and application, but have no power over the substance, of original justice. The other foundation of law, which is utility, must be understood, not of partial or limited, but of general and public, utility, connected in the same manner with, and derived directly from, our rational nature: for any other utility may be the utility of a robber, but cannot be that of a citizen,the interest of the domestic enemy, and not that of a member of the commonwealth.
It is sufficiently known that the first Christians, avoiding the Pagan tribunals, tried most even of their civil causes before the bishop, who, though he had no direct coercive power, yet, wielding the sword of excommunication, had wherewithal to enforce the execution of his judgments. Thus the bishop had a considerable sway in temporal affairs, even before he was owned by the temporal power.
The Saxon laws, imperfect and various as they were, served in some tolerable degree a people who had by their Constitution an eye on each others concerns, and decided almost all matters of any doubt amongst them by methods which, however inadequate, were extremely simple. They judged every controversy either by the conscience of the parties, or by the countrys opinion of it, or what they judged an appeal to Providence. They were unwilling to submit to the trouble of weighing contradictory testimonies; and they were destitute of those critical rules by which evidence is sifted, the true distinguished from the false, the certain from the uncertain. Originally, therefore, the defendant in the suit was put to his oath, and if on oath he denied the debt or the crime with which he was charged, he was of course acquitted. But when the first fervours of religion began to decay, and fraud and the temptations to fraud to increase, they trusted no longer to the conscience of the party. They cited him to an higher tribunal,the immediate judgment of God. Then trials were so many conjurations, and the magical ceremonies of barbarity and heathenism entered into law and religion. This supernatural method of process they called Gods Dome; it is generally known by the name of Ordeal, which in the Saxon language signifies the Great Trial. This trial was made either by fire or water: that by fire was principally reserved for persons of rank; that by water decided the fate of the vulgar; sometimes it was at the choice of the party.
The Common Law, as it then prevailed in England, was in a great measure composed of some remnants of the old Saxon customs, joined to the feudal institutions brought in at the Norman Conquest. And it is here to be observed that the constitutions of Magna Charta are by no means a renewal of the Laws of St. Edward, or the ancient Saxon laws, as our historians and law-writers generally, though very groundlessly, assert. They bear no resemblance in any particular to the Laws of St. Edward, or to any other collection of these ancient institutions. Indeed, how should they? The object of Magna Charta is the correction of the feudal policy, which was first introduced, at least in any regular form, at the Conquest, and did not subsist before it.
By the Feudal Law, all landed property is, by a feigned conclusion, supposed to be derived, and therefore to be mediately or immediately held, from the crown. If some estates were so derived, others were certainly procured by the same original title of conquest by which the crown itself was acquired, and the derivation from the king could in reason only be considered as a fiction of the law.
There is scarce any object of curiosity more rational than the origin, the progress, and the various revolutions of human laws. Political and military relations are for the greater part accounts of the ambition and violence of mankind: this is an history of their justice. And surely there cannot be a more pleasing speculation than to trace the advances of men in an attempt to imitate the Supreme Ruler in one of the most glorious of his attributes, and to attend them in the exercise of a prerogative which it is wonderful to find intrusted to the management of so weak a being. In such an inquiry we shall, indeed, frequently see great instances of this frailty; but at the same time we shall behold such noble efforts of wisdom and equity as seem fully to justify the reasonableness of that extraordinary disposition by which men, in one form or other, have been always put under the dominion of creatures like themselves.
The Norman Conquest is the great era of our laws. At this time the English jurisprudence, which had hitherto continued a poor stream, fed from some few, and those scanty sources, was all at once, as from a mighty flood, replenished with a vast body of foreign learning, by which, indeed, it might be said rather to have been increased than much improved; for this foreign law, being imposed, not adopted, for a long time bore strong appearances of that violence by which it had been first introduced. All our monuments bear a strong evidence to this change. New courts of justice, new names and powers of officers, in a word, a new tenure of land as well as new possessors of it, took place. Even the language of public proceedings was in a great measure changed.
Sir, if such a man fell into errors, it must be from defects not intrinsical; they must be rather sought in the particular habits of his life, which, though they do not alter the groundwork of character, yet tinge it with their own hue. He was bred in a profession. He was bred to the law, which is, in my opinion, one of the first and noblest of human sciences,a science which does more to quicken and invigorate the understanding than all the other kinds of learning put together; but it is not apt, except in persons very happily born, to open and to liberalize the mind exactly in the same proportion. Passing from that study, he did not go very largely into the world, but plunged into business,I mean into the business of office, and the limited and fixed methods and forms established there. Much knowledge is to be had, undoubtedly, in that line; and there is no knowledge which is not valuable. But it may be truly said that men too much conversant in office are rarely minds of remarkable enlargement. Their habits of office are apt to give them a turn to think the substance of business not to be much more important than the forms in which it is conducted. These forms are adapted to ordinary occasions; and therefore persons who are nurtured in office do admirably well as long as things go on in their proper order; but when the high-roads are broken up, and the waters out, when a new and troubled scene is opened, and the file affords no precedent, then it is that a greater knowledge of mankind and a far more extensive comprehension of things is requisite, than ever office gave, or than office can ever give. Mr. Grenville thought better of the wisdom and power of human legislation than in truth it deserves.
In effect, to follow, not to force, the public inclination,to give a direction, a form, a technical dress, and a specific sanction, to the general sense of the community, is the true end of legislation.
Edmund Burke: Letter to the Sheriffs of Bristol, April 3, 1777.
Surely the state of Ireland ought forever to teach parties moderation in their victories. People crushed by law have no hopes but from power. If laws are their enemies, they will be enemies to laws; and those who have much to hope and nothing to lose will always be dangerous, more or less.
There is nothing certain in the principles of jurisprudence, if this be not undeniably true, that when a special authority is given to any persons by name to do some particular act, that no others, by virtue of general powers, can obtain a legal title to intrude themselves into that trust, and to exercise those special functions in their place.
Edmund Burke: Speech on the Nabob of Arcots Debts, Feb. 28, 1785.
And first of all, the science of jurisprudence, the pride of the human intellect, which, with all its defects, redundancies, and errors, is the collected reason of ages, combining the principles of original justice with the infinite variety of human concerns, as a heap of old exploded errors, would be no longer studied. Personal self-sufficiency and arrogance (the certain attendants upon all those who have never experienced a wisdom greater than their own) would usurp the tribunal. Of course no certain laws, establishing invariable grounds of hope and fear, would keep the actions of men in a certain course, or direct them to a certain end.
Edmund Burke: Reflections on the Revolution in France, 1790.
Cromwell knew how to separate the institutions expedient to his usurpation from the administration of the public justice of his country. For Cromwell was a man in whom ambition had not wholly suppressed, but only suspended, the sentiments of religion, and the love (as far as it could consist with his designs) of fair and honourable reputation. Accordingly, we are indebted to this act of his for the preservation of our laws, which some senseless asserters of the rights of men were then on the point of entirely erasing, as relics of feudality and barbarism. Besides, he gave, in the appointment of that man [Sir Matthew Hale], to that age, and to all posterity, the most brilliant example of sincere and fervent piety, exact justice, and profound jurisprudence.
Edmund Burke: Letter to a Member of the Nat. Assembly, 1791.
Reports, though of a kind less authentic than the Year Books, to which Coke alludes, have continued without interruption to the time in which we live. It is well known that the elementary treatises of law, and the dogmatical treatises of English jurisprudence, whether they appear under the names of institutes, digests, or commentaries, do not rest on the authority of the supreme power, like the books called the Institute, Digest, Code, and authentic collations in the Roman law. With us doctrinal books of that description have little or no authority, other than as they are supported by the adjudged cases and reasons given at one time or other from the bench; and to these they constantly refer. This appears in Cokes Institutes, in Comynss Digest, and in all books of that nature. To give judgment privately is to put an end to reports; and to put an end to reports is to put an end to the law of England.
Edmund Burke: Imp. of W. Hastings: Report on the Lords Journals, 1794.
Your Committee is of opinion that nothing better could be devised by human wisdom than argued judgments publicly delivered for preserving unbroken the great traditionary body of the law, and for marking, whilst that great body remained unaltered, every variation in the application and the construction of particular parts, for pointing out the ground of each variation, and for enabling the learned of the bar and all intelligent laymen to distinguish those changes made for the advancement of a more solid, equitable, and substantial justice, a progressive experience, and the improvement of moral philosophy, from those hazardous changes in any of the ancient opinions and decisions which may arise from ignorance, from levity, from false refinement, from a spirit of innovation, or from other motives, of a nature not more justifiable.
Edmund Burke: Imp. of W. Hastings: Report on the Lords Journals, 1794.
Their rules with regard to competence were many and strict, and our lawyers have mentioned it to their reproach. The Civilians, it has been observed, differ in nothing more than admitting evidence; for they reject histriones, etc., and whole tribes of people. But this extreme rigour as to competency rejected by our law, is not found to extend to the genus of evidence, but only to a particular species,personal witnesses. Indeed, after all their efforts to fix these things by positive and inflexible maxims, the best Roman lawyers, in their best ages, were obliged to confess that every case of evidence rather formed its own rule than that any rule could be adapted to every case. The best opinions, however, seem to have reduced the admissibility of witnesses to a few heads. For if, said Callistratus, in a passage preserved to us in the Digest, the testimony is free from suspicion, either on account of the quality of the person, namely, that he is in a reputable situation, or for cause, that is to say, that the testimony given is not for reward nor favour nor for enmity, such a witness is admissible. This first description goes to competence, between which and credit Lord Hardwicke justly says the discrimination is very nice. The other part of the text shows their anxiety to reduce credibility itself to a fixed rule.
Edmund Burke: Imp. of W. Hastings: Report on the Lords Journals, 1794.
At length, Lord Hardwicke, in one of the cases the most solemnly argued that has been in mans memory, with the aid of the greatest learning at the bar, and with the aid of all the learning on the bench, both bench and bar being then supplied with men of the first form, declared from the bench, and in concurrence with the rest of the judges, and with the most learned of the long robe, the able council on the side of the old restrictive principles making no reclamation, that the judges and sages of the law have laid it down that there is but ONE general rule of evidence,the best that the nature of the case will admit.
Edmund Burke: Imp. of W. Hastings: Report on the Lords Journals, 1794.
Lord Hardwicke had before declared, with great truth, that the boundaries of what goes to the credit and what to the competency are very nice, and the latter carried too far; and in the same case [King v. Bray] he said, that, unless the objection appeared to him to carry a strong danger of perjury, and some apparent advantage might accrue to the witness, he was always inclined to let it go to his credit, only in order to let in a proper light to the case, which would otherwise be shut out; and in a doubtful case, he said, it was generally his custom to admit the evidence, and give such directions to the jury as the nature of the case might require.
Edmund Burke: Imp. of W. Hastings: Report on the Lords Journals, 1794.
In truth, it seems a wild attempt to lay down any rule for the proof of intention by circumstantial evidence. All the acts of the party,all things that explain or throw light on these acts,all the acts of others relative to the affair, that come to his knowledge, and may influence him,his friendships and enmities, his promises, his threats, the truth of his discourses, the falsehood of his apologies, pretences, and explanations, his looks, his speech, his silence where he was called to speak,everything which tends to establish the connection between all these particulars,every circumstance, precedent, concomitant, and subsequent, become parts of circumstantial evidence. These are in their nature infinite, and cannot be comprehended within any rule or brought under any classification.
Edmund Burke: Imp. of W. Hastings: Report on the Lords Journals, 1794.
Much industry and art have been used, among the illiterate and unexperienced, to throw imputations on this prosecution, and its conduct, because so great a proportion of the evidence offered on the trial (especially on the latter charges) has been circumstantial. Against the prejudices of the ignorant your committee opposes the judgment of the learned. It is known to them, that, when this proof is in its greatest perfection, that is, when it is most abundant in circumstances, it is much superior to positive proof; and for this we have the authority of the learned judge who presided at the trial of Captain Donellan: On the part of the prosecution a great deal of evidence has been laid before you. It is all circumstantial evidence, and in its nature it must be so: for, in cases of this sort, no man is weak enough to commit the act in the presence of other persons, or to suffer them to see what he does at the time; and therefore it can only be made out by circumstances, either before the committing of the act, at the time when it was committed, or subsequent to it. And a presumption which necessarily arises from circumstances is very often more convincing and more satisfactory than any other kind of evidence; because it is not within the reach and compass of human abilities to invent a train of circumstances which shall be so connected together as to amount to a proof of guilt, without affording opportunities of contradicting a great part, if not all, of these circumstances. But if the circumstances are such as, when laid together, bring conviction to your minds, it is then fully equal, if not, as I told you before, more convincing than positive evidence.
Edmund Burke: Imp. of W. Hastings: Report on the Lords Journals, 1794.
I know no human being exempt from the law. The law is the security of the people of England; it is the security of every person that is governed, and of every person that governs. There is but one law for all, namely, that law which governs all law, the law of our Creator, the law of humanity, justice, equity,the Law of Nature and of Nations. So far as any laws fortify this primeval law, and give it more precision, more energy, more effect by their declarations, such laws enter into the sanctuary, and participate in the sacredness of its character.
The Law of Nations is the law of India as well as of Europe, because it is the law of reason and the law of Nature, drawn from the pure sources of morality, of public good, and of natural equity, and recognized and digested into order by the labour of learned men.
It has ever been the method of public jurists to draw a great part of the analogies on which they form the law of nations from the principles of law which prevail in civil communities. Civil laws are not all of them merely positive. Those which are rather conclusions of legal reason than matters of statutable provision belong to universal equity, and are universally applicable. Almost the whole prætorian law is such.
He [Lord-Commissioner Whitelocke, in a speech in parliament, in 1649] showed that the silence of counsellors on capital cases was the fault of the law, which kept them silent; and he ingenuously confessed that he could not answer that objection, that a man, for a trespass to the value of sixpence, may have a counsellor to plead for him; but that where life and posterity were concerned, he was debarred of that privilege. What was said in vindication or excuse of that customthat the Judges were counsel for the prisonerhad no weight in it; for were they not to take the same care of all causes that should be tried before them? A reform of that defect he allowed would be just. But it was nearly two hundred years before that reform came, and I am ashamed to say it was to the last opposed by almost all the Judges.
Lord Campbell: Lord Chancellors, iii.: Life of Whitelocke.
The venerable sages who apprehended such multiplied evils from altering the practice [of not allowing counsel to prisoners in capital cases] must have been greatly relieved by finding that their objections have proved as unfounded as those which were urged against the abolition of peine forte et dure; and the alarming innovation, so long resisted, of allowing witnesses for the prisoner to be examined under the sanction of an oath.
Lord Campbell: Lord Chancellors, iii.: Life of Lord-Chancellor Jeffreys.
When we censure those who have gone before us for inefficiency in law reform, we should recollect that we ourselves have never solved the problem of recompensing professional labour without the test of the length of law proceedings, and that till this is done all attempts to check prolixity will be vain. [Note:] A striking illustration of the brevity which lawyers could attain, there being no interest to be verbose, is the judgment of death upon a felon, which, as there was no fee according to the number of words contained in it, was thus recorded, SUS PER COL.
Lord Campbell: Lord Chancellors, iii.: Life of Lord King.
may truly be said of a juridical system, and the due distribution of justice depends much more upon the rules by which suits are to be conducted, than on the perfection of the code by which rights are defined.
Lord Campbell: Lord Chancellors, iii.: Life of Lord Somers.
Of all the departments of literature, jurisprudence is the one in which the English had least excelled. Their treatises of highest authority were a mere jumble, without regard to arrangement or diction. Now, for the first time, appeared among us a writer who rivalled the best productions of the French and German jurists. He [Charles Yorke] was not only an admirer, but a correspondent, of Montesquieu; and he had caught a great share of the Presidents precision, and of his animation. In this treatise [Some Considerations on the Laws of Forfeiture for High Treason] he logically lays down his positions, and enforces them in a strain of close reasoning,without pedantic divisions, observing lucid order;and drawing from the history and legislation of other countries the most apposite illustrations of his arguments.
Lord Campbell: Lord Chancellors, v.: Life of Lord-Chancellor Charles Yorke.
I delight to think that my special pleading father [William Tidd], now turned of eighty, is still alive, and in the full enjoyment of his faculties. He lived to see four sons sitting together in the House of Lords,Lord Lyndhurst, Lord Denman, Lord Cottenham, and Lord Campbell. To the unspeakable advantage of having been three years his pupil I chiefly ascribe my success at the bar. I have great pride in recording that when, at the end of my first year, he discovered that it would not be quite convenient for me to give him a second fee of one hundred guineas, he not only refused to take a second, but insisted on returning me the first. Of all the lawyers I have ever known, he has the finest analytical head; and if he had devoted himself to science I am sure that he would have earned great fame as a discoverer. His disposition and his manners have made him universally beloved.
Lord Campbell: Lord Chancellors, v.: Life of Lord Thurlow, note.
While fully aware of the impossibility of reducing the whole law of any civilized country into a written code in which might be found all that judges or legal practitioners can require for the due administration of justice, so that all other law-books might be dispensed with and burned, I was in hopes that the criminal law, from its simplicity and certainty, was a partial exception; but having sat for eleven days with one Chancellor and four ex-Chancellors, Cranworth, Lyndhurst, Brougham, Truro, and St. Leonards, upon the single title of homicide, I gave up the attempt in despair. We never could agree on a definition of murder or manslaughter. Brougham himself was particularly unhandy at this work, and justified the answer given by Maule, J., to the question whether the attempt could now be safely made:I think the attempt would now be particularly dangerous; for the scheme is impracticable, and there are some who believe that they could easily accomplish it.
Lord Campbell: Lord Chancellors, viii. 580, n.: Life of Lord Brougham.
We ought not hastily to accuse him [David Hume] of wilful misrepresentation or suppression, for he was utterly unacquainted with English juridical writers. Gibbon entered on a laborious study of the Roman civil law to fit him to write his DECLINE AND FALL; but Hume never had the slightest insight into our jurisprudence, and his work, however admirable as a literary composition, is a very defective performance as a history. Of the supposed distinction [made by Hume in his History of England, reign of James I.] between a statute and a proclamationthat the former was of perpetual obligation till repealed, and the latter lost its force on a demise of the crownI do not find a trace in any of our books.
Lord Campbell: Lives of the Chief Justices, i. 276, note: Sir Edward Coke.
In the belief that Coke was humbled as effectually well as the other Judges, the following question was put to them: In a case where the King believes his prerogative or interest concerned, and requires the Judges to attend him for their advice, ought they not to stay proceedings till his Majesty has consulted them? All the Judges except Coke: Yes! Yes! Yes! Coke, C. J.: WHEN THE CASE HAPPENS, I SHALL DO THAT WHICH SHALL BE FIT FOR A JUDGE TO DO.
Men with a multiplicity of transactions pressing on them, and moving in a narrow circle, and meeting each other daily, desire to write little, and leave unwritten what they take for granted in every contract. In spite of the lamentations of judges, they will continue to do so; and in a vast majority of cases, of which courts of law hear nothing, they do so without loss or inconvenience; and upon the whole they find this mode of dealing advantageous, even at the risk of occasional litigation. It is the business of courts reasonably so to shape their rules of evidence as to make them suitable to the habits of mankind, and such as are not likely to exclude the actual facts. To exclude the usage is to exclude a material term of the contract, and must lead to an unjust decision.
Laws written, if not on stone tables, yet on the azure of infinitude, in the inner heart of Gods creation, certain as life, certain as death! I say, the laws are there, and thou shalt not disobey them. It were better for thee not. Better a hundred deaths than yea! Terrible penalties, if thou wilt still need penalties, are there for disobeying.
It must be confessed by all, that there is a law of nature writ upon the hearts of men, which will direct them to commendable actions, if they will attend to the writing in their own consciences. This law cannot be considered without the notice of a Lawgiver. For it is but a natural and obvious conclusion, that some superior hand engrafted those principles in man, since he finds something in him twitching him upon the pursuit of uncomely actions, though his heart be mightily inclined to them; man knows he never planted this principle of reluctancy in his own soul; he can never be the cause of that which he cannot be friends with. If he were the cause of it, why doth he not rid himself of it? No man would endure a thing that doth frequently molest and disquiet him, if he could cashier it. It is therefore sown in man by some hand more powerful than man, which riseth so high, and is rooted so strong, that all the force that man can use cannot pull it up.
And the law, that is the perfection of reason, cannot suffer any thing that is inconvenient for reason is the life of the law, nay the common law itselfe is nothing else but reason; which is to be understood of an artificiall perfection of reason, gotten by long study, observation, and experience, and not of every mans naturall reason; for Nemo nascitur artifex. This legall reason est summa ratio. And therefore if all the reason that is dispersed into so many severall heads were united into one, yet could he not make such a law as the law in England is; because by many successions of ages it hath beene fined and refined by an infinite number of grave and learned men, and by long experience growne to such a perfection, for the government of this realme, as the old rule may be justly verified of it, Neminem oportet esse sapientorem legibus: no man out of his own private reason ought to be wiser than the law, which is the perfection of reason.
If I am asked a question of common law, I should be ashamed if I could not immediately answer it; but if I am asked a question of statute law, I should be ashamed to answer it without referring to the statute book.
Sir Edward Coke: Lord Campbells Lives of the Chief Justices, i. 324: Sir Edward Coke.
Poetical reports of law cases are not very common, yet it seems to me desirable that they should be so. Many advantages would accrue from such a measure. They would, in the first place, be more commonly deposited in the memory, just as linen, grocery, or other such matters, when neatly packed, are known to occupy less room, and to lie more conveniently in any trunk, chest, or box to which they may be committed. In the next place, being divested of that infinite circumlocution, and the endless embarrassment in which they are involved by it, they would become surprisingly intelligible in comparison with their present obscurity.
A fixed rule may give rise to occasional deviations from justice; but these amount to nothing more than the price which every member of the community may be called upon to pay for the advantage of an enlightened code. No laws can be framed sufficiently comprehensive to embrace the infinite varieties of human action, and the labours of the lawgiver must be confined to the development of those principles which constitute the support and security of society. He views man with reference to the general good, and that alone. He legislates for man in general,not for particular cases.
Lord-Chancellor Erskine: Speech in the House of Lords on the Banbury Peerage Case.
I was bred, in my early youth, in two professions [Navy and Army], the characteristic of which is honour. But, after the experience of very many years, I can say with truth, that they cannot stand higher for honour than the profession of the law. Amidst unexampled temptations, which, through human frailty, have produced their victims, the great bulk of the members of it are sound; and the cause is obvious: there is something so beautiful and exalted in the faithful administration of justice, and departure from it is so odious and disgusting, that a perpetual monitor is raised up in the mind against the accesses of corruption. The same protection ought also to apply to us, the highest of the Judges.
Lord-Chancellor Erskine: Speech in the House of Lords, Trial of Queen Caroline, 1820.
Laws were made to restrain and punish the wicked: the wise and good do not need them as a guide, but only as a shield against rapine and oppression: they can live civilly and orderly though there were no law in the world.
To go to law is for two persons to kindle a fire at their own cost to warm others, and singe themselves to cinders; and because they cannot agree as to what is truth and equity, they will both agree to unplume themselves, that others may be decorated with their feathers.
By the original law of nations, war and extirpation were the punishment of injury. Humanizing by degrees, it admitted slavery instead of death: a further step was the exchange of prisoners instead of slavery.
My lawyer tells me, returned he, that I have Salkeld and Ventris strong in my favour, and that there are no less than fifteen cases in point.I understand, said I, those are two of your judges who have already declared their opinion.Pardon me, replied my friend, Salkeld and Ventris are lawyers who some hundred years ago gave their opinions on cases similar to mine; these opinions which make for me my lawyer is to cite, and those opinions which look another way are cited by the lawyer employed by my antagonist: as I observed, I have Salkeld and Ventris for me, he has Coke and Hale for him, and he that has most opinions is most likely to carry his cause.But where is the necessity, cried I, of prolonging a suit by citing the opinions and reports of others, since the same good sense which determined lawyers in former ages may serve to guide your judges at this day? They at that time gave their opinions only from the light of reason: your judges have the same light at present to direct them, let me even add a greater, as in former ages there were many prejudices from which the present is happily free. If arguing from authorities be exploded from every other branch of learning, why should it be particularly adhered to in this? I plainly foresee how such a method of investigation must embarrass every suit, and even perplex the student: ceremonies will be multiplied, formalities must increase, and more time will thus be spent in learning the arts of litigation than in the discovery of right.
We must remember that laws were not made for their own sakes, but for the sake of those who were to be guided by them; and though it is true that they are and ought to be sacred, yet if they be or are become unuseful for their end, they must either be amended, if it may be, or new laws be substituted, and the old repealed, so it be done regularly, deliberately, and so far forth only as the exigence or convenience justly demands it; and in this respect the saying is true, Salus populi suprema lex esto. He that thinks a state can be exactly steered by the same laws in every kind as it was two or three hundred years ago, may as well imagine that the clothes that fitted him when a child should serve him when he was grown a man. The matter changeth, the custom, the contracts, the commerce, the dispositions, educations, and tempers of man and societies, change in a long tract of time, and so must their laws in some measure be changed, or they will not be useful for their state and condition; and, besides all this, time is the wisest thing under heaven. These very laws which at first seemed the wisest constitution under heaven, have some flaws and defects discovered in them by time. As manufactures, mercantile arts, architecture, and building, and philosophy itself, secure new advantages and discoveries by time and experience, so much more do laws which concern the manners and customs of men.
All the laws of this kingdom have some monuments or memorials thereof in writing, yet all of them have not their original in writing; for some of those laws have obtained their force by immemorial usage or custom.
When the wisest counsel of men have with the greatest prudence made laws, yet frequent emergencies happen which they did not foresee, and therefore they are put upon repeals and supplements of such their laws; but Almighty God, by one ample foresight, foresaw all events, and could therefore fit laws proportionate to the things he made.
He who considers what it is that constitutes the force of penal laws will find it is their agreement with the moral feelings which nature has implanted in the breast. When the actions they punish are such, and only such, as the tribunal of conscience has already condemned, they are the constant object of respect and reverence. They enforce and corroborate the principles of moral order by publishing its decisions and executing its sanctions. They present to the view of mankind an august image of a moral administration,a representation in miniature of the eternal justice which presides in the dispensations of the Almighty.
Of Blackstones Commentaries it would be presumptuous in us to attempt an eulogium, after Sir William Jones has pronounced it to be the most beautiful outline that was ever given of any science. Nothing can exceed the luminous arrangement, the vast comprehension, and, we may venture to add from the best authorities, the legal accuracy of this wonderful performance, which in style and composition is distinguished by an unaffected grace, a majestic simplicity, which can only be eclipsed by the splendour of its higher qualities.
Robert Hall: Review of Custance on the Constitution.
Arguments from inconveniences certainly deserve the greatest attention, and, where the weight of other reasoning is nearly on an equipoise, ought to turn the scale. But if rule of law is clear and explicit, it is in vain to insist upon inconveniences; nor can it be true that nothing which is inconvenient is lawful; for that supposes in those who make laws a perfection which the most exalted human wisdom is incapable of attaining, and would be an invincible argument against ever changing the law.
Of law there can be no less acknowledged than that her seat is the bosom of God, her voice the harmony of the world. All things in heaven and earth do her homage,the very least as feeling her care, the greatest as not exempted from her power: both angels and men and creatures, of what condition soever, though each in different sort and manner, yet all with uniform consent, admiring her as the mother of their peace and joy.
General laws are like general rules in physic: according whereunto, as no wise man will desire himself to be cured, if there be joined with his disease some special accident; in regard whereof, that whereby others (in the same infirmity but without the like accident) recover health would be to him either hurtful, or at the least unprofitable.
God hath delivered a law as sharp as the two-edged sword, piercing the very closest and most unsearchable corners of the heart, which the law of nature can hardly, human laws by no means, possibly reach unto.
When we abrogate a law as being ill made, the whole cause for which it was made still remaining, do we not herein revoke our very own deed, and upbraid ourselves with folly, yea, all that were makers of it with oversight and error?
Unto laws that men make for the benefit of men, it hath seemed always needful to add rewards which may more allure unto good than any hardness deterreth from it, and punishments which may more deter from evil than any sweetness thereto allureth.
A law there is among the Grecians, whereof Pittacus is author: that he which being overcome with drink did then strike any man should suffer punishment double as much as if he had done the same being sober.
The day is still within the memory of many, when men on trial for their lives were not permitted to defend themselves by counsel, and this deprivation was made in the name of fairness, because, saith Coke, that the testimony and proof of the crime ought to be so clear and manifest that there can be no defence of it. If we travel back still farther, we come to a time when no prisoner was entitled to a copy of the indictment against him, of the panel, or of any of the proceedings.
Again, not only were men accused of felonies refused the right to look at the indictments framed against them, but, until the twelfth year of the reign of George the Second, the indictments themselves, with the pleas, verdicts, judgments, and so forth, were all uttered in an unknown tongue, and written in a law-hand with ambiguous abbreviations; some of which it was allowable to interpret in more ways than one. And in this languagewhich was neither Latin, French, nor English, but a compound of all threein this language rather than in his innocence lay the accused mans best chance of acquittal.
To expect the prisoner to plead not guilty being guilty, and to say that he does not therein add one more untruth to his offences because it is not falsehood you ask of him but only a legal form, is, in truth, the reverse of a solemn and true opening of a most true and solemn trial. Upon the holding up of the hand, Lord Bacon tells a story of a Welshman who, when the judge told him to hold up his hand, believed that his lordship was about to tell his fortune.
There were some niceties connected with the judicial treatment of the law of Escheat, or Confiscation, which led even to a necessity for bringing torture into common use. If prisoners liable to confiscation of their goods were mutes, that is to say, refused to plead, there could be no attainder, and, consequently, no escheat. For this reason, in Sir Matthew Hales time it was the constant practice at Newgate to tie together with whipcord the two thumbs of any refractory person, and the whipcord with the aid of a parson soon produced the desired effect. If more were required, recourse was had to the peine forte et dure, the more horrible form of torture.
When a traitor was condemned to be hung, drawn, and quartered, that sentence was commonly preceded by the order that he should be carried on a hurdle to the place of execution. This hurdle was a merciful invention of the monks. The original sentence had been that the object of a royal vengeance should be dragged at the tail of a horse over the stones and through the mud; and so brought, already bruised and bleeding, to his death.
There used to beas, we suppose, there are stilla great many delicacies in the laws having reference to homicide and burglary; but in Sir Matthew Hales time, the knotty question of what was passable Latin for burglarious and burglar in the framing of indictments was THE delicacy of the season. More offenders escaped by the writing of burgariter, or burgenter, for burglariter, than by proof of innocence; but, although these errors were common and fatal flaws in an indictment, it was ruled that burglariter was good Latin enough to serve the purposes of law.
I will rather pass on to my friends, the High Priests of the Mysteries, whose business it is to frame the laws of which I am an humble expositor. On the members of the legislature of this happy country I look advisedly as my best friends. Their persevering ingenuityonly to be acquired by the most diligent study of precedentin burying all simple facts designed for the public guidance, beneath a dense medley of verbiage, tautology, reiteration, and verbal mysticism, that puts the legal acumen of the most consummate rogue (as myself, for example) to a severe test to disentangle one single thread of any practical utility from the mass; their constant passing of Acts to amend Acts of which nobody (save themselves and the Queens printer) has been aware of the existence; their incessant passing of other Acts to repeal other Acts still, until it requires the most gimblet-eyed clairvoyance to discover which are Acts in force and which notthese kindnesses place them in the first rank of our (the rogues) benefactors.
If it was said in the indictment of the act of a man who had slain another, murdredavit instead of murdravit, or of a felonious act, that it was done feloniter, when it should have been said felonice, the indictment was quashed, and the criminal set free. In Queen Elizabeths time one John Webster, a brutal murderer, was acquitted because the letter h was omitted in the Latin word for arm. The indictment had sinistro bracio instead of sinistro brachio; and another man was liberated because it was judged material that u was put instead of a in the Latin for the phrase otherwise called. It was A. B. alius dictus A. C. butcher; when the law ruled it to be essential to write A. B. alias dictus A. C. butcher. These niceties were in the highest degree arbitrary. Gross blunders were sometimes held to be within the bounds of legal language; and whether right or wrong, the terms of the indictment, except for any flaws they might contain, mattered not much to the accused.
The idle subtleties that have been spent by criminal lawyers upon the subject of theft could scarcely be seen to more advantage than in the consideration of that element in thieving which consists in carrying the stolen thing away; or, as the books called it, the asportavit. Thus, it was held that if a prisoner removed a package from the head to the tail of a wagon, the asportavit was complete; but if he moved it only by lifting it up where it lay, and standing it on end, for the purpose of ripping it open, the asportavit was not complete, because every part of the package was not shown to be moved. The central point of it might be exactly where it was before. This was understood by the poet who declared the asportavit to be complete as against him when the Knave of Hearts he stole some tarts, andtook them quite away.
A fair trial! However great may be the defects of English law, certain it is that we have attained at last to a complete respect for the liberty of the subject, in the administration of justice as regards felonies and capital crimes. There is a great deal to be amended in the dealing with lesser offences at our petty and quarter sessions; but, in our more solemn courts of criminal justice, no honest mans liberty or life is endangered. It was not so in Scotland, neither was it altogether so in England, sixty years ago.
Tyrannical deeds were done in criminal courts in the years seventeen hundred and ninety-three and four, which prompted the late Lord Cockburn to write an impression, the general acceptance of which is singularly illustrated by one of the events of the day in which his Memorials are published,namely, that the existence of circumstances, such as the supposed clearness and greatness of their guilt, tending to prejudice prisoners on their trials, gives them a stronger claim than usual on that sacred judicial mildness, which, far more than any of the laws terrors, procures respect for authority, and without which courts, let them punish as they may, only alienate and provoke.
Let us go back to Bacons time, and hear what, on the prompting of that wise man, James the First said to his parliament: There be in the common law divers contrary reports and precedents; and this corruption doth likewise concern the statutes and acts of parliament, in respect that there are divers cross and cuffing statutes, and some so penned as they may be taken in divers, yea contrary senses; and therefore would I wish both those statutes and reports, as well in the parliament as common law, to be at once maturely reviewed and reconciled; and that not only all contrarieties should be scraped out of our books, but even that such penal statutes as were made but for the use of the time which do not agree with the condition of this our time, ought likewise to be left out of our books. And this reformation might, methinks, be made a worthy work, and well deserves a parliament to be sat of purpose for doing it.
To this day we are still asking for this mature revision and reconciliation; while we add heap to heap confusedly, and mingle living laws with dead. There are on the books ten thousand dead statutes for England alone, relating to subjects as vain as the carrying of coals to Newcastle. The living die in the arms of the dead, said Bacon; and we are at this day only echoing his warning.
Said Lord Bacon, So great is the accumulation of the statutes, so often do those statutes cross each other, and so intricate are they, that the certainty of the law is entirely lost in the heap. Lord Bacon said this when the number of our public statutes was two thousand one hundred and seventy-one. Thus, the profoundest brain that ever a wig covered, pronounced itself to be lost in the maze of a law constructed of two thousand one hundred and seventy-one disjointed statutes. From his day to our own, the maze has been incessantly in progress of enlargement. New laws are hung on to the outskirts of the rest, faster than new streets on the outskirts of this our metropolis; new legal neighbourhoods spring up, new streets of law are pushed through the heart of old established legislation, and all this legal building and improvement still goes on with little or no carting away of the old building materials and other rubbish .
If, therefore, two thousand statutes perplexed Bacon, what sort of a legal genius must he be who can feel easy with eighteen thousand on his mind? It is manifest that in these law-making days it should need nine Bacons to make one Judge.
There have been several efforts made with various success in the way of law amendment. Thirty years ago. Sir Robert Peel in three statutes consolidated a large mass of the old criminal law. Five years afterwards, Lord Melbourne consolidated the whole law relating to offences against the person. The Chief Baron of the Exchequer procured the passing of a law which brought together all the regulations scattered among many local acts with reference to notices of action, statutes of limitation, and double and treble costs. Better still in the way of superseding old, bad law, with better; two acts of Parliamentthe act which established County Courts and that which regulated a fresh Common Law Procedure, for which we have Mr. Baron Martin, Mr. Baron Brumwell, and Mr. Justice Willes to thankhave saved a million a year to the law-needing part of the community.
The famous code of Justinian was perfected in less than four years; fourteen months of which were spent in winnowing the chaff out of the legal grain accumulated in a thousand years. Trebonian, aided by a staff of seventeen lawyers, in three years reduced three million sentences to one hundred and fifty thousand; so perfecting the pandects and institutes. For the framing of the Code Napoléon a commission of jurists was appointed on the twelfth of August in the year eighteen hundred. In four months it delivered its report, which was then open to criticism. The council of state afterwards completed the discussion of it in one hundred and two sittings.
There are one or two legal terms of which the meaning is not perhaps generally known. We need remind no one that lunacy is derived from an idea that madness is connected with the moon; but many may not be aware that felony is derived from an idea that felons are prompted by excess of gall. Felonies were crimes committed felleo animo, with a mind affected by the gall; and Hale was of opinion that the reason why a lunatic cannot be guilty of a crime, is a want of gall. Then, again, maiming is not any kind of wounding, but such wounding as lessens a mans power of battling in his own defence. Therefore, it was ruled that to knock out a mans front tooth is to maim him; but that he is not maimed by the knocking out of a grinder; because with a front tooth he can bite and tear an enemy, but with a grinder he can only masticate his food.
It is curious to note how long and how steady has been the process of reform in the administration of our criminal justice. The spirit of English libertythe sense of equal rights among all citizenshas, in this one department of the law, prevailed against every unwholesome precedent, and has slowly raised our courts of criminal law to a character of which we have had, in the trial of the Poisoner, certainly a crowning illustration. They are undoubtedly the freest and the fairest courts of justicewe may say it most deliberatelyin the world.
But one touch more is needed to complete this rough sketch of the union between law and order on our statute-books and records. Of the legislation thus conducted no proper accounts are kept. We have, indeed, some consolidation of the criminal law, and some effort to supply annually criminal statistics. But while in France the whole relation of crime to the population is set forth by tables of the results of accusations and decisions, carefully recorded, we have no returns whatever from our civil courts; none with regard to the common law, and none from any of the courts of equity. Even the returns we have are almost useless.
I wonder why I feel a glow of complacency in a court of justice, when I hear the learned judges taking uncommon pains to prevent the prisoner from letting out the truth. If the object of the trial be to discover the truth, perhaps it might be as edifying to hear it, even from the prisoner, as to hear what is unquestionably not the truth from the prisoners advocate. I wonder why I say, in a flushed and rapturous manner, that it would be un-English to examine the prisoner. I suppose that with common fairness it would be next to impossible to confuse him, unless he lied; and if he did lie, I suppose he could hardly be brought to confusion too soon.
I have had the misfortune to have a sum of money left to me by a will which has been drawn by an illogical (for I wont say roguish) lawyer; who has inserted a parenthesis in the most inconsiderate manner, in the very heart of the most important paragraph, totally at variance with the context, and only calculated to create heart-burnings and fees. The bequest is made to three families: and the only matter in dispute is, whether one of the third shares should be divided. I wished the Lord Chancellor, or one of the Vice Chancellors, as an authority on the subject, to give me his reading of the passage in question, and the consequence is that I am driven to the verge of insanity. Without there being the slightest question as to pedigree involved in the matter, I am required to produce somebody who knew my grandmother before her marriage seventy years ago; who knew when she was married, and where she was married, and whom she married; and who must swear in the most determined and awful manner that she had four children, and no more and no less, and so on, and so on. Of course there are writings produced, and marked with all the letters in the alphabet, from A to Z inclusive, attached to this swearing, which would have perplexed the Sphinx, and which are calculated to cause octogenarian witnesses to cast their spectacles into the dust in despair. Of course there is the difficulty of persuading anybody of eighty that mere signing his or her name to an affidavit and kissing the New Testament at two and sixpence a time, is such a harmless and common proceeding as the Court of Chancery insists it is.
He who knows not how often rigorous laws produce total impunity, and how many crimes are concealed and forgotten for fear of hurrying the offender to that state in which there is no repentance, has conversed very little with mankind. And whatever epithets of reproach or contempt this compassion may incur from those who confound cruelty with firmness, I know not whether any wise man would wish it less powerful, or less extensive . This scheme of invigorating the laws by relaxation, and extirpating wickedness by lenity, is so remote from common practice that I might reasonably fear to expose it to the public, could I be supported only by my own observations: I shall, therefore, by ascribing it to its author, Sir Thomas More, endeavour to procure it that attention which I wish always paid to prudence, to justice, and to mercy.
The right of juries to return a general verdict in all cases whatsoever, is an essential part of our [the English] constitution, not to be controlled or limited by the judges, nor in any shape questioned by the legislature.
I do apprehend that the rules of evidence are to be considered as artificial rules, framed by men for convenience in courts of justice. This is a case that ought to be looked upon in that light; and I take it that considering evidence in this way [viz., according to natural justice] is agreeable to the genius of the law of England.
That, on great emergencies, the State may justifiably pass a retrospective act against an offender, we have no doubt whatever. We are acquainted with only one argument on the other side which has in it enough of reason to bear an answer. Warning, it is said, is the end of punishment. But a punishment inflicted, not by a general rule, but by an arbitrary discretion, cannot serve the purpose of a warning. It is therefore useless; and useless pain ought not to be inflicted. This sophism has found its way into several books on penal legislation. It admits, however, of a very simple refutation. In the first place, punishments ex post facto are not altogether useless even as warnings. They are warnings to a particular class which stand in great need of warnings, to favourites and ministers. They remind persons of this description that there may be a day of reckoning for those who ruin and enslave their country in all the forms of law. But this is not all. Warning is, in ordinary cases, the principal end of punishment; but it is not the only end. To remove the offender, to preserve society from those dangers which are to be apprehended from his incorrigible depravity, is often one of the ends. In the case of such a knave as Wild, or such a ruffian as Thurtell, it is a very important end. In the case of a powerful and wicked statesman, it is infinitely more important; so important as alone to justify the utmost severity, even though it were certain that his fate would not deter others from imitating his example. At present, indeed, we should think it extremely pernicious to take such a course, even with a worse minister than Strafford, if a worse could exist; for, at present, Parliament has only to withhold its support from a Cabinet to produce an immediate change of hands. The case was widely different in the reign of Charles the First. That Prince had governed during eleven years without any Parliament, and, even when Parliament was sitting, had supported Buckingham against its most violent remonstrances.
Lord Thomas Babington Macaulay: Hallam, Sept. 1828.
Mr. Hallam is of opinion that a bill of pains and penalties ought to have been passed; but he draws a distinction less just, we think, than his distinctions usually are. His opinion, so far as we can collect it, is this, that there are almost insurmountable objections to retrospective laws for capital punishment, but that, where the punishment stops short of death, the objections are comparatively trifling. Now, the practice of taking the severity of the penalty into consideration, when the question is about the mode of procedure and the rules of evidence, is no doubt sufficiently common. We often see a man convicted of a simple larceny on evidence on which he would not be convicted of a burglary. It sometimes happens that a jury, when there is strong suspicion, but not absolute demonstration, that an act, unquestionably amounting to murder, was committed by the prisoner before them, will find him guilty of manslaughter. But this is surely very irrational. The rules of evidence no more depend on the magnitude of the interests at stake than the rules of arithmetic. We might as well say that we have a greater chance of throwing a six when we are playing for a penny than when we are playing for a thousand pounds, as that a form of trial which is sufficient for the purposes of justice in a matter affecting liberty and property is insufficient in a matter affecting life. Nay, if a mode of proceeding be too lax for capital cases, it is, a fortiori, too lax for all others; for, in capital cases, the principles of human nature will always afford considerable security. No judge is so cruel as he who indemnifies himself for scrupulosity in cases of blood by license in affairs of smaller importance. The difference in tale on the one side far more than makes up for the difference in weight on the other.
Lord Thomas Babington Macaulay: Hallam, Sept. 1828.
I believe that no country ever stood so much in need of a code of laws as India; and I believe also that there never was a country in which the want might so easily be supplied. I said that there were many points of analogy between the state of that country after the fall of the Mogul power and the state of Europe after the fall of the Roman empire. In one respect the analogy is very striking. As there were in Europe then, so there are in India now, several systems of law widely differing from each other, but coexisting and coequal. The indigenous population has its own laws. Each of the successive race of conquerors has brought with it its own peculiar jurisprudence: the Mussulman his Koran and the innumerable commentators on the Koran; the Englishman his Statute Book and his Term Reports. As there were established in Italy, at one and the same time, the Roman Law, the Lombard Law, the Riparian Law, the Bavarian Law, and the Salic Law, so we have now in our Eastern empire Hindoo Law, Mahometan Law, Parsee Law, English Law, perpetually mingling with each other and disturbing each other, varying with the person, varying with the place. In one and the same cause the process and pleadings are in the fashion of one nation, the judgment is according to the laws of another. An issue is evolved according to the rules of Westminster and decided according to those of Benares. The only Mahometan book in the nature of a code is the Koran; the only Hindoo book, the Institutes. Everybody who knows those books knows that they provide for a very small part of the cases which must arise in every community. All beyond them is comment and tradition. Our regulations in civil matters do not define rights, but merely establish remedies. If a point of Hindoo law arises, the Judge calls on the Pundit for an opinion. If a point of Mahometan law arises, the Judge applies to the Cauzee. What the integrity of these functionaries is, we may learn from Sir William Jones. That eminent man declared that he could not answer it to his conscience to decide any point of law on the faith of a Hindoo expositor. Sir Thomas Strange confirms this declaration. Even if there were no suspicion of corruption on the part of the interpreters of the law, the science which they profess is in such a state of confusion that no reliance can be placed on their answers.
Lord Thomas Babington Macaulay: Speech on the Government of India, July 10, 1833.
Sir Francis Macnaghten tells us that it is a delusion to fancy that there is any known and fixed law under which the Hindoo people live; that texts may be produced on any side of any question; that expositors equal in authority perpetually contradict each other; that the obsolete law is perpetually confounded with the law actually in force; and that the first lesson to be impressed on a functionary who has to administer law is that it is in vain to think of extracting certainty from the books of the jurist. The consequence is that in practice the decisions of the tribunal are altogether arbitrary. What is administered is not law, but a kind of rude and capricious equity. I asked an able and excellent judge lately returned from India how one of our Zillah Courts would decide several legal questions of great importance, questions not involving considerations of religion or of caste, mere questions of commercial law. He told me that it was a mere lottery. He knew how he should himself decide them. But he knew nothing more. I asked a most distinguished civil servant of the Company, with reference to the clause of this Bill on the subject of slavery, whether, at present, if a dancing-girl ran away from her master the judge would force her to go back. Some judges, he said, send a girl back. Others set her at liberty. The whole is a mere matter of chance. Everything depends on the temper of the individual judge.
Lord Thomas Babington Macaulay: Speech on the Government of India, July 10, 1833.
Even in this country we have had complaints of judge-made law; even in this country, where the standard of morality is higher than in almost any other part of the world; where during several generations not one depositary of our legal traditions has incurred the suspicion of personal corruption; where there are popular institutions; where every decision is watched by a shrewd and learned audience; where there is an intelligent and discerning public; where every remarkable case is fully reported in a hundred newspapers; where, in short, there is everything which can mitigate the evils of such a system. But judge-made law, where there is an absolute government and a lax morality, where there is no bar and no public, is a curse and scandal not to be endured. It is time that the magistrate should know what law he is to administer, that the subject should know under what law he is to live.
Lord Thomas Babington Macaulay: Speech on the Government of India, July 10, 1833.
A code is almost the only blessing, perhaps it is the only blessing, which absolute governments are better fitted to confer on a nation than popular governments. The work of digesting a vast and artificial system of unwritten jurisprudence is far more easily performed, and far better performed, by few minds than by many, by a Napoleon than by a Chamber of Deputies and a Chamber of Peers, by a government like that of Prussia or Denmark than by a government like that of England. A quiet knot of two or three veteran jurists is an infinitely better machinery for such a purpose than a large popular assembly divided, as such assemblies almost always are, into adverse factions.
Lord Thomas Babington Macaulay: Speech on the Government of India, July 10, 1833.
The best codes extant, if malignantly criticised, will be found to furnish matter for censure in every page: the most copious and precise of human languages furnish but a very imperfect machinery to the legislator.
Lord Thomas Babington Macaulay: Introductory Report upon the Indian Penal Code: Macaulays Works, Complete, edited by his Sister, Lady Trevelyan, 1866, 8 vols. 8vo, vii. 416.
There are two things which a legislator should always have in view while he is framing laws: the one is, that they should be as far as possible precise; the other, that they should be easily understood. To unite precision and simplicity in definitions intended to include large classes of things, and to exclude others very similar to many of those which are included, will often be utterly impossible. Under such circumstances it is not easy to say what is the best course. That a law, and especially a penal law, should be drawn in words which convey no meaning to the people who are to obey it, is an evil. On the other hand, a loosely worded law is no law, and to whatever extent a legislature uses vague expressions, to that extent it abdicates its functions, and resigns the power of making law to the courts of justice.
Lord Thomas Babington Macaulay: Introductory Report upon the Indian Penal Code: Macaulays Works, Complete, edited by his Sister, Lady Trevelyan, 1866, 8 vols. 8vo, vii. 423.
It appears to us that all the works which indicate that an act is a proper subject for legal punishment meet in the act of false pleading. That false pleading always does some harm is plain. Even when it is not followed up by false evidence, it always delays justice. That false pleading produces any compensating good to atone for this harm has never, so far as we know, been even alleged . We have as yet spoken only of the direct injury produced to honest litigants by false pleading. But this injury appears to us to be only a part, and perhaps not the greatest part, of the evil engendered by the practice. If there be any place where truth ought to be held in peculiar honour, from which falsehood ought to be driven with peculiar severity, in which exaggerations which elsewhere would be applauded as the innocent sport of the fancy, or pardoned as the natural effect of excited passion, ought to be discouraged, that place is a Court of Justice. We object, therefore, to the use of legal fictions, even when the meaning of those fictions is generally understood, and we have done our best to exclude them from this code, but that a person should come before a Court, should tell that Court premeditated and circumstantial lies for the purpose of preventing or postponing the settlement of a just demand, and that by so doing he should incur no punishment whatever, seems to us to be a state of things to which nothing but habit could reconcile wise and honest men. Public opinion is vitiated by the vicious state of the laws. Men who in any other circumstances would shrink from falsehood have no scruple about setting up false pleas against just demands. There is one place, and only one, where deliberate untruths told with the intent to injure are not considered as discreditable, and that place is a Court of Justice. Thus the authority of the tribunals operates to lower the standard of morality, and to diminish the esteem in which veracity is held; and the very place which ought to be kept sacred from misrepresentations such as would elsewhere be venial becomes the only place where it is considered as idle scrupulosity to shrink from deliberate falsehood.
We consider a law for punishing false pleading as indispensably necessary to the expeditious and satisfactory administration of justice, and we trust that the passing of such a law will speedily follow the appearance of the code of procedure.
Lord Thomas Babington Macaulay: Notes on the Indian Penal Code: Macaulays Works, 1866, 8 vols. 8vo, vii. 484.
When we pass from the science of medicine to that of legislation, we find the same difference between the systems of these two great men [Plato and Bacon]. Plato, at the commencement of the Dialogue on Laws, lays it down as a fundamental principle that the end of legislation is to make men virtuous. It is unnecessary to point out the extravagant conclusions to which such a proposition leads. Bacon well knew to how great an extent the happiness of every society must depend on the virtue of its members; and he also knew what legislators can and what they cannot do for the purpose of promoting virtue. The view which he has given of the end of legislation, and of the principal means for the attainment of that end, has always seemed to us eminently happy, even among the many happy passages of the same kind with which his works abound. [De Augmentis, Lib. 3, Cap. 3, Aph. 5.] The end is the well-being of the people. The means are the imparting of moral and religious education; the providing of everything necessary for defence against foreign enemies; the maintaining of internal order; the establishing of a judicial, financial, and commercial system, under which wealth may be rapidly accumulated and securely enjoyed.
Lord Thomas Babington Macaulay: Lord Bacon, July, 1837.
Law, said Dr. Johnson, is the science in which the greatest powers of the understanding are applied to the greatest number of facts; and no one who is acquainted with the variety and multiplicity of the subjects of jurisprudence, and with the prodigious powers of discrimination employed upon them, can doubt the truth of this observation.
There is not, in my opinion, in the whole compass of human affairs so noble a spectacle as that which is displayed in the progress of jurisprudence; where we may contemplate the cautions and unwearied exertions of wise men through a long course of ages, withdrawing every case, as it arises, from the dangerous power of discretion, and subjecting it to inflexible rules, extending the dominion of justice and reason, and gradually contracting within the narrowest possible limits the domain of brutal force and arbitrary will.
The arguments on the other side [that is, arguments against admitting the testimony in question from the novelty of the case] prove nothing. Does it follow from thence that no witnesses can be examined in a case that never specifically existed before, or that an action cannot be brought in a case that never happened before? Reason (being stated to be the first ground of all laws by the author of the book called Doctor and Student) must determine the case. Therefore the only question is, whether upon principles of reason, justice, and convenience, this witness be admissible. Cases in law depend upon the occasions which give rise to them.
Lord Mansfield: (when Solicitor-General Murray): Ormichund v. Barker, 1st Atkyns.
All evidence is according to the subject-matter to which it is applied. There is a great deal of difference between length of time that operates as a bar to a claim and that which is used only by way of evidence. Length of time used merely by way of evidence may be left to the consideration of the jury, to be credited or not, or to draw their inferences one way or the other, according to circumstances. I do not know an instance in which proof may not be supplied.
Lord Mansfield: Mayor of Hull v. Horner: Cowpers Reports, 109.
General rules are wisely established for attaining justice with ease, certainty, and dispatch; but the great end of them being to do justice, the Court will see that it be really obtained. The courts have been more liberal of late years in their determinations, and have more endeavoured to attend to the real justice of the case, than formerly.
Laws derive their authority from possession and usance: Tis dangerous to trace them backward to their beginning; they grow great, and ennoble themselves like our rivers by running: but follow them upward to their source, tis but a little spring, scarce discernible, that swells thus, and thus fortifies itself by growing old. Do but consult the ancient considerations that gave the first motion to this famous torrent so full of dignity and reverence: you will find them so light and weak, that it is no wonder if these people, who weigh and reduce every thing to reason, and who admit nothing by authority, or upon trust, have their judgments very remote and differing from those of the publick. It is no wonder if people who take their pattern from the first image of nature should in most of their opinions swerve from the common path.
Michel de Montaigne: Essays, Cottons 3d ed., ch. lxix.
They [the Utopians] have but few laws, and such is their constitution that they need not many. They do very much condemn other nations whose laws, together with the comments on them, swell up so many volumes, for they think it an unreasonable thing to oblige men to obey a body of laws that are both of such a bulk and so dark that they cannot be read or understood by every one of the subjects. They have no lawyers among them, for they consider them as a sort of people whose profession it is to disguise matters as well as to wrest laws; and therefore they think it is much better that every man should plead his own cause, and trust it to the judge.
A law presupposes an agent; this is only the mode according to which an agent proceeds; it implies a power, for it is the order according to which that power acts. Without this agent, without this power, which are both distinct from itself, the law does nothing, is nothing.
It is extremely proper that there should be some general rules in relation to evidence; but if exceptions were not allowed to them, it would be better to demolish all the general rules. There is no general rule without exception that we know of but this,that the best evidence shall be admitted which the nature of the case will afford. I will show that rules as general as this are broke in upon for the sake of allowing evidence. There is no rule that seems more binding than that a man shall not be admitted an evidence in his own case, and yet the Statute of Hue and Cry is an exception. A mans books are allowed to be evidence, or, which is in substance the same, his servants books, because the nature of the case requires it,as in the case of a brewers servants. Another general rule, that a wife cannot be witness against her husband, has been broke in upon in cases of treason. Another exception to the general rule that a man may not be examined without oath,the last words of a dying man are given in evidence in the case of murder.
Our laws are so numerous that, together with their commentaries, they would have furnished sufficient solid reading for Adam had he lived until now; and the best of it is, that he would probably have been as wise when he concluded as when he began.
There is something sacred in misery to great and good minds; for this reason all wise lawgivers have been extremely tender how they let loose even the man who has right on his side, to act with any mixture of resentment against the defendant.
No one appreciates more fully than myself the general importance of the study of the law. No one places a higher value upon that science as the great instrument by which society is held together and the cause of public justice is maintained and vindicated. Without it, neither liberty, nor property, nor life, nor that which is even dearer than life, a good reputation, is for a moment secure. It is, in short, the great elastic power which pervades and embraces every human relation. It links man to man by so many mutual ties, and duties, and dependencies, that, though often silent and unseen in its operations, it becomes at once the minister to his social necessities and the guardian of his social virtues.
Judge Joseph Story: Address at Harvard 2d Centen. Anniv., Sept. 8, 1836: Storys Life and Letters, ii. 254.
The common law has now become an exceedingly voluminous system; and as its expositions rest, not on a positive text, but upon arguments, analogies, and commentaries, every person who desires to know much must engage in a very extensive system of reading. He may employ half his life in mastering treatises the substance of which, in a positive code, might occupy but a few hundred pages. The codes of Justinian, for instance, superseded the camel-loads of commentaries which were antecedently in use, and are all now buried in oblivion. The Napoleon Codes have rendered thousands of volumes only works of occasional consultation which were before required to be studied very diligently, and sometimes in repeated perusals.
Judge Joseph Story: Encyc. Amer., vii. (1835), Appendix (Law, Legislation, Codes).
The opinion of no jurist, however high or distinguished is his reputation or ability, is of the least importance in settling the law, or ascertaining its construction, in England or the United States. So far as he may, by his arguments, or counsel, or learning, instruct the court, or enlighten its judgments, they have their proper weight. But if the court decide against his opinion, it falls to the ground. It has no farther effect. The decision becomes conclusive and binding, and other courts are governed by it, as furnishing for them the just rule of decision. No court would feel itself at liberty to disregard it, unless upon the most urgent occasion, and when it interfered with some other known rule or principle; and even then with the greatest caution and deference. In countries where the common law prevails, it is deemed of infinite importance that there should be a fixed and certain rule of decision, and that the rights and property of the whole community should not be delivered over to endless doubts and controversies. Our maxim, in truth, and not in form merely, is, Misera est servitus, ubi jus est vagum aut incertum.
Judge Joseph Story: Encyc. Amer., vii. (1835), Appendix (Law, Legislation, Codes).
The negative precepts of men may cease by many instruments: by contrary customs; by public disrelish; by long omission: but the negative precepts of God never can cease but when they are expressly abrogated by the same authority.
After a man has studied the general principles of the law, reading the reports of adjudged cases, collected by men of great sagacity, will richly improve his mind towards acquiring this desirable amplitude and extent of thought.