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"Il y a un mode de punir, ou, pour faire une égratignure au coupable, on passe une épée au travers du corps d'un innocent (f); and such, as Mr. Bentham justly observes, is this punishment of disqualification.
But mark the consistency of the law. A person convicted of a crime is not permitted to give evidence in the most indifferent matter, where he can have no possible interest to pervert the truth; -an accomplice in a crime of the same malignity is a competent witness; not for any trivial purposes in which he is wholly uninterested, but for the very purpose of convicting his associates, and thereby securing his own pardon. "The credit to be given to such a witness is for the consideration of the jury: the acknowledged turpitude of the witness must necessarily stamp his testimony with suspicion; and it is to be the more carefully watched; since such a witness lies under a strong temptation to substantiate the account which he has already given, in the hopes of pardon, and is likely to suppose that his object will be gained by a conviction, and may be frustrated by an acquittal (g)." And why, it may be asked, should not the credit of a witness be left to the consideration of the jury alone, where the turpitude is infinitely less; where the crime has suffered its appropriate punishment, and where the temptation to deviate from the truth does not exist? If the verdict of a jury depended, not upon the weight and value of the evidence, but upon the number of swearers on each side, there would be perhaps some reason for this rule of exclusion; but such not being the case, the rule is as preposterous as it is mischievous. (h)
Another ground of incompetency we have before alluded to;— a want, namely, of religious belief. Modern practice has indeed very much narrowed this disqualification; but even as the rule now stands, it is only necessary to examine the reasoning upon which it is founded, to prove its absurdity. The law assumes that where a person does not believe "in the existence of a Deity, or in a state where that Deity will punish perjury," there can be no sense of moral obligation, no check upon his conduct, no security that he will speak the truth. If we possessed the means of looking into a man's mind, and ascertaining the real state of his belief without his assistance, we might possibly be justified in rejecting his testimony, on account of his creed. But how do we derive our information? We question himself; and if, as the law argues, he has no check upon his conduct; if, as an Atheist,
(f) Theorie des Peines et des Recompenses, i. 367.
(g) Starkie on Evidence, p. 4. 21. (h) We recollect a case in which
the validity of a will was questioned, because the testator's footman, who witnessed it, had some years before been convicted of sheep-stealing.
he must of necessity be unprincipled, he will, of course, should it be an object to him to pervert justice by his evidence, profess to believe, and no one on earth can contradict him. We are obliged to trust to himself to prove his own incompetency. Should he possess sufficient honesty and sincerity to avow his disbelief, we reject him as unworthy of credit ;-deliberate falsehood will make him a sound and competent witness.
ART. VII.-PROPOSED ALTERATIONS IN THE COURTS OF COMMON PLEAS AND EXCHEQUER.
CONSIDERABLE doubts may fairly be entertained, whether justice would not be much better administered to the mass of the people by local courts, permanently fixed in different parts of the country, possessing exclusive jurisdiction over matters of every description within their own districts, than by a number of distinct courts, all sitting in the same place, with a concurrent jurisdiction over the whole kingdom. Our own opinion is in favour of the former, and we hope to be able to enlarge upon this subject, and show the reasons for our opinion in a future number of this work. But whatever may be thought upon this question, there can be no doubt that when we find courts of the latter description already established, they should all be made as efficient as possible, and that it should not be suffered that some of them, from the manner in which they are constituted, should be nearly useless, while the others are so overloaded with business, that the length of time, which must of necessity intervene before a matter brought before them can be heard, will very often amount to a total denial of justice. This however is the present state of the four supreme courts of this country.
By means of the fictions which have been adopted or permitted by the Courts of King's Bench, Common Pleas, and Exchequer, all civil actions, (except real actions which are exclusively under the cognizance of the Court of Common Pleas, and which are extremely rare), may now be brought in any one of these three courts the suitor pleases. The Court of Exchequer has also in the same manner obtained concurrent jurisdiction with the Court of Chancery in almost all matters except lunacy and bankuptcy. It nevertheless has happened that the Courts of King's Bench and Chancery have for a long time been overwhelmed with business, while the Courts of Common Pleas and Exchequer have been, if not utterly idle, at least very little employed. This evil arises from several causes, all of which, however, might be removed, as we shall immediately show, without any difficulty, by a very few
alterations in the constitution of the latter courts. Among these causes we do not include any difference which may exist between the talents of the judges of the several courts, because the state of the bench of the Common Pleas and Exchequer has, we believe, arisen from the inefficiency of these courts, and not the inefficiency of the courts from the state of the bench; although there is no doubt, that the effect has to some extent operated again as a cause. Owing to the comparative unimportance of these courts the same attention has not been given to them as to the others, either by the bar or by the public. Judicial appointments have often been made in the Courts of Common Pleas and Exchequer, which would never have been ventured upon in the Court of King's Bench. (a) Render the Courts of Exchequer and Common Pleas in other respects as efficient as the King's Bench and Chancery, and public opinion will be equally powerful in preventing the appointment of improper judges to the former
as to the latter.
Independently of any supposed difference between the judges of the several courts, which we put out of the question for the reasons before-mentioned, there are defects in the constitution and rules of the Common Pleas and Exchequer quite sufficient to account for the disfavour into which they have fallen. We will endeavour shortly to point out these defects, and to suggest in what manner they might be remedied.
The principal, if not the only reason, which prevents the Court of Common Pleas from bearing its equal share with the King's Bench in the civil actions of the country is, we have no doubt, the exclusive privilege which the serjeants enjoy of pleading there. No barrister can practise in the Common Pleas in term time who has not been called by the King's writ to the state and degree of a serjeant at law; and Lord Eldon has made the granting this writ a matter of favour. There are now but fifteen serjeants professing to practise in court, and ot more than ten who actually do practise there. This legal n. nopoly deters the suitor from bringing his action in the Common Pleas, he naturally goes to those courts where he may select what advocate he chooses to plead his cause; where he is not compelled to elect among a small body of persons nominated by the Chancellor, but may employ any
(a) These observations apply more particularly to the Court of Exchequer. The office of Puisne Baron has sometimes been made an asylum for age and infirmity, a noiseless and elegant retirement, Senes ut in otia tuta recedant;' at other times a receptacle for those law officers of
the crown whom the minister felt himself compelled to provide for, but did not venture to place in a situation where, from the business which they would have to do, their incompetence would have been too conspicuous.
individual at the bar whom he thinks most competent to defend his interests. "Why then," as Mr. Miller has well observed in his Inquiry into the Civil Law of England (b), "is this fraternity continued. It is injurious to the bar, as the length of standing required for admission, and heavy charges consequent upon it, must prevent persons from making application for that purpose who are well entitled to it; and even when application has been made, the power which the Lord Chancellor possesses of granting or withholding it, gives him a control over the profession of the law, with which no conscientious public officer can desire to be invested. It is even more injurious to the general usefulness of the court than to the interest of the bar. Those who have a monopoly of legal argument are as likely to become careless or inexpert in the management of their business as monopolists of any other description, and it is not natural to suppose, that so many causes will be heard before a tribunal where there are only ten or twelve practitioners as where there are two or three hundred. When there is so much necessity as exists at present for increasing the efficiency of all courts of justice, one is surprised how so complete a specimen of legal monachism has been permitted to outlive the eighteenth century. The proper period for the dissolution of the order would have been in 1731, when the 4th Geo. 2, c. 26, abolished the old law-handwriting, law French, and law Latin." There can be no doubt that if the monopoly of the serjeants were now abolished, and the Court of Common Pleas thrown open to the bar, many more actions would be brought in it than are at present; that the King's Bench would consequently be eased of a portion of the business with which it is now overloaded, and the administration of justice generally improved. No reason whatever, that we can see, can be urged against the measure, except that it will diminish the value of the Chancellor's patronage. The judges of the Court are understood not to be averse to it. The serjeants will hardly venture to make any opposition, or even in these days to put in any claim for compensation. The greater part, if not the whole, of them took the coif for the precedence that it gives them on circuit. That precedence they would still retain. None but two or three favourite leaders do any business worth speaking of in town, and they, it is understood, would willingly consent to have the Court opened, on condition of being allowed to practise in the Court of King's Bench, which, by the etiquette of the profession, they arc at present precluded from doing.
The Court of Exchequer however stands more in need of reform
(b) Miller's Inquiry into the present state of the Civil Law of England, p. 24.
than the Common Pleas. It is at present by far the most inefficient of all the courts of Westminster Hall. During term, the King's Bench always sits at least six hours a day, and the Common Pleas generally three; while the Exchequer is seldom occupied above an hour or an hour and a half. It is true that the Lord Chief Baron also sits apart three or four days in the week to hear causes in equity; but that is no reason why the other three judges, who have power to proceed without him, should be doing nothing. The causes which render the Exchequer inoperative as a court of law are, except as regards the capacity of the judges, distinct from those which affect it as a court of equity. It will, therefore, be more convenient to notice them separately.
The common law side of the Exchequer is not, like the Common Pleas, open only to a limited number of advocates; but it is subject to a monopoly still more injurious. No action can be prosecuted or defended in the Court of Exchequer, except by one of the sworn attornies in the Office of Pleas in the Court, or by an officer called a clerk in court, in the name of one of the sworn attorneys. There are four sworn attorneys, and sixteen clerks in court. ́By one of these privileged individuals must the business of every suitor be conducted. The consequence is that no person, unless he is a client of one of these four attorneys or sixteen clerks in court, or of a country attorney for whom they act as agents, ever brings an action in the Court of Exchequer. It is true that these clerks in court will act as agents for other attorneys for half fees, but no attorney will of his own accord bring an action for his client in that Court where his own profit will only be half what it would be in any other; few clients ever interfere themselves in the choice of the court in which their actions are to be brought, and fewer still would think it prudent to act in opposition to their attorney's advice. Where, indeed, these clerks in court happen to act as town agents for country attorneys, it is all the same to the attorney in which court the action is brought, as he would have to allow his agent half the profits in any case; but the number of clerks in court is so small, that this circumstance need hardly to be taken into account.
The effects of such a system are exactly what might be expected. The civil business of the law side of the Court of Exchequer is next to nothing. It is difficult to ascertain precisely the actual quantity of business done by the different courts of law, as there is no way of knowing in which court the actions tried on the circuit are commenced. The following table, however, extracted from the Parliamentary Returns, will enable us to judge of the comparative quantity brought before each court. It shows the number of civil causes entered for trial in the Courts of King's Bench and Common Pleas, and on the common law side of the