V.

it would have implied that injustice to a prisoner could Lecture be remedied by neglect of duty on the part of a judge.

Consider, again, the nature of one only of the many irrational restrictions placed by the common law upon the admissibility of evidence. The party to an action, or the husband or wife of such party, was not competent to be a witness at the trial.1 Note what this restriction meant. A brought an action against X, e.g., for breach of contract or for an assault. The persons most likely to know-and perhaps the only persons who did know the facts of the case-might well be A, the plaintiff, and X, the defendant; yet neither A nor X was allowed to tell his story to the jury. At the present day we wonder not that under such a rule there should have been frequent failures of justice, but that in spite of it the ends of justice should often have been attained. But Parliament did not modify this irrational exclusion of necessary evidence until well after the end of the period of stagnation. The chief steps for its abolition are worth notice. Under the influence of Benthamite teaching it was, in 1846, abolished as regards proceedings in the County Courts; five years later it

3

1 See Taylor On Evidence (6th ed.), s. 1210.

2 The result might occasionally, at any rate, be that a person who had suffered a grievous wrong was in effect deprived of any civil remedy. X assaults A. No other persons are present. Neither X nor A could give evidence. It might possibly happen that A had no means of proving the assault. Counsel, who lived when this exclusion of evidence was in force, have sometimes attributed a large part of the extraordinary successes achieved by Erskine or Scarlett to the impossibility of bringing the real facts of a case before a jury, and the wide scope thus given to a skilful advocate of suggesting imaginary accounts of transactions which, in the absence of evidence, admitted of more than one interpretation.

3 9 & 10 Vict. c. 95, s 83.

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Lecture was done away with as regards most actions in the Superior Courts; in 1869 it was abolished as regards all civil actions, and also as regards all proceedings instituted in consequence of adultery.2

At the time, further, when the common law courts made oral evidence the basis of their inquiries, but deprived this mode of investigation of half its worth by excluding from the witness-box the parties to the cause, who naturally knew most about the truth, the Court of Chancery allowed a plaintiff to search the conscience of the defendants, and the defendants, by a cross bill, to perform a similar operation upon their antagonist, but only permitted the inquiry to be on paper. In other words, whilst the common law courts took the right method for ascertaining the truth, they excluded the evidence of the persons to whom alone the truth was likely to be known, whilst the Court of Chancery admitted the evidence of the persons most likely to know the truth,

1 The Evidence Act, 1851 (14 & 15 Vict. c. 99), s. 2. Even then the parties to an action for a breach of promise of marriage still were excluded from giving evidence, and were not made competent witnesses till 1869.

2 The Evidence Further Amendment Act, 1869, 32 & 33 Vict. c. 68. The principle or prejudice that persons interested in the result of a trial, whether civil or criminal, ought on account of their temptation to lie, even when on oath, not only to be heard as witnesses with a certain suspicion, but also to be held incompetent to give evidence, lingered on in the sphere of criminal law till nearly the close of the nineteenth century. Only in 1898 was a person charged with a criminal offence at last allowed to give evidence on his own behalf. (Criminal Evidence Act, 1898, 61 & 62 Vict. c. 36.) The truth, that is to say, of Bentham's doctrine that, "in the character of objections to competency no objections ought to be allowed,” was not fully admitted till sixty-six years after his death. Before 1898, however, persons charged with crime had, in the case of special offences, been allowed to give evidence under various different enactments. 3 See Bowen, Reign of Queen Victoria, i. p. 290.

V.

but would receive it only in the form of written Lecture answers, which give little or no security that the witnesses who know the truth should tell it; and this anomaly in the procedure of the courts of equity was not substantially altered until the middle of the nineteenth century,' and was completely removed only by the Judicature Act, 1875.

As to Legal Fictions and Survivals. - Every branch of the law teemed with fictions and survivals; they constituted the oddities of our legal system, and, whether simply useless or actually noxious, were specially typical of an age which acquiesced in things as they were.

2

The ordinary civil jurisdiction of the Court of King's Bench rested upon the absurd fiction that the defendant in an action, e.g. for a debt, had been guilty of a trespass. The ordinary civil jurisdiction of the Court of Exchequer rested upon the equally absurd fiction that the plaintiff in an action was a debtor to the king, and, owing to the injury or damage done him by the defendant, was unable to pay his debt to the king. If A brought an action for a wrong done him abroad' by X, as, for instance, for an assault committed at Minorca, his right to sue was justified by the fiction that the assault had taken place "at Minorca, (to wit) at London, in the parish "of St. Mary-le-Bow, in the ward of Cheap." If A brought an action of ejectment against X to

5

1 The Chancery Procedure Act, 1852 (15 & 16 Vict. c. 86), s. 39. See Ashburner, Principles of Equity, pp. 30-32.

2 Blackstone, Comm. iii. p. 43.

3 Ibid. p. 46.

4 Mostyn v. Fabrigas, 1775, Cowp. 161.

5 "The action was commenced (without any writ) by a declaration,

V.

Lecture establish A's title to land of which X was in possession, the whole proceeding was based on a purely fictitious or imaginary action brought by a plaintiff, John Doe, who had no existence, against a defendant, Richard Roe, who had no existence, for an assault committed upon the said John Doe on the land claimed by A, which assault had never been committed by any one, either on such land or elsewhere. If a tenant in tail wished to bar the entail, he could indeed do so in 1800 as a tenant in tail can do it to-day, but, whereas now the result is achieved by an ordinary deed of conveyance duly enrolled,' in 1800, and for many years later, it was attained by an action which was a fiction from beginning to end, and an action under which the tenant in tail nominally lost the very estate over which, by barring the entail, he, in fact, obtained complete control.

66

These long labyrinths of judge-made fictions, which

every word of which was untrue: it alleged a lease from the claimant "to the nominal plaintiff (John Doe): an entry by him under and by "virtue of such lease; and his subsequent ouster by the nominal "defendant (Richard Roe): at the foot of such declaration was a notice "addressed to the tenants in possession, warning them, that, unless they appeared and defended the action within a specified time, they "would be turned out of possession. This was the only comprehensible "part to a non-professional person: it generally alarmed the tenants "sufficiently to send them to their attorney, whereby one main object "of the proceeding was attained: but the tenants were not permitted to defend the action, nor to substitute their names as defendants in "lieu of that of the casual ejector (Richard Roe), except upon entering consent rule,' whereby they bound themselves to admit "the alleged lease, entry, and ouster, and to plead the general issue "not guilty,' and to insist on the title only."-Cole, Law and Practice in Ejectment (1857), p. 1. For a popular account of the action of ejectment as it still existed in 1840, see Warren's Ten Thousand a Year.

"into a

1 Stephen, Comm. i. (14th ed.), pp. 347, 348.

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were far more intricate than can be made apparent Lecture without giving details unsuitable for the purpose of these lectures, seem to a lawyer of to-day as strange as the most fanciful dreams of Alice in Wonderland. They sometimes, indeed, led by a most roundabout path to the attainment of desirable ends, but, while they were hardly defensible, even by the ardent optimism of Blackstone,' they were, as experience has now proved, absolutely unnecessary. They were nevertheless tolerated, or rather held unobjectionable, by the public opinion of 1800, just as were other survivals and fictions which were as noxious as they were obviously ridiculous. Under the proceeding, in itself anomalous, of an appeal of murder, the appellee might, through his right to claim trial by battel, sometimes escape conviction, as he certainly did as late as 1818, by reliance not on proof of his innocence, but on the strength of his arm. Benefit of clergy, as regulated by law in 1800, though it no doubt mitigated the monstrous severity of punishments for crime, did in certain instances give an unjustifiable privilege or protection to criminals who happened to be clerks in orders.3 Privilege of Peerage was simply a nuisance and an injustice. In 1765 it saved the Lord Byron of the day from the punishment due to manslaughter; in 1776 it saved the Duchess of Kingston from punishment for

1 Blackstone, Comm. ii. p. 361.

2 See Blackstone, Comm. iii. pp. 337, 341; ibid. iv. pp. 340-342; Ashford v. Thornton, 1818, 3 B. & Ald. 485; 19 R. R. 349; Campbell, Chief Justices, iv. (3rd ser.), pp. 232, 233. Appeal of murder and trial by battel were abolished in 1819. 59 Geo. III. c. 46.

3 Stephen, Hist. i. p. 463.

4 19 State Trials, 1177.