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This noble maxim I should wish to have written; in conspicuous characters, in every court and place in the kingdom where legal judginents and resolutions are to be pronounced.
We are frequently entertained by eloquent declamations upon liberty and substantial justice; but the enthusiasm of the orator is apt to hurry him beyond the bounds of utility, and the practicability of human affairs. He can paint the distant landscape in all the colouring and beauty of art and nature, but he cannot find his way to those pleasing objects before his eyes, of which he gives us so agreeable a representation.
I should have itnagined, previous to any investigation of the question, that, in a country governed by equal laws, no proposition could be more simple and evident than this, viz. that the guilt and innocence of every subject must be manifested by the same media of proof, or by the same rules of evidence : and that one might have been warranted in closing the controversy, by declaring, that contra negantem principia non est disputandum. When a proposition is so clear that no clearer proposition can be brought in support of it, it is self-evident, and incapable of demonstration ; for all human reasoning is a gradual progression from
undeniable truths, or, by certain steps, to what without such aid would be uncertain and obscure. :
And nothing can be more irksome to an author, than to be obliged to undertake the proof of a doctrine, of which he hardly conceives a doubt can be entertained ; as he must necessarily apprehend that he will incur the imputation of puerility and frivolity, or insult the understanding of his reader.
Before I proceed to the consideration of the law of Evidence, which is perhaps the most beautiful and philosophical branch of English jurisprudence, I think it not foreign to my purpose to give a short explanation of the policy of laws, and the general rules which are essential to the administration of public justice.
It has been asked, Vir lonus est quis ?-and it was answered by one unacquainted with the distinction between the private practice of morality and the public administration of justice,
. Qui consulta patrum, qui leges juraque servat : and therefore it might justly be replied, i
Sed videt hunc omnis domus, vicinia tota
Religion * Hor. Epist. Lib. I. Epist. 10.
Religion and morality enjoin us to cherisha spirit of good-will and benevolence, and to discharge the reciprocal obligations of society. If their voice were heard, and their precepts in every instance observed, Government would be a superfluous pageant, and the Law a dead letter. But such is the imperfection of human natựre and human establishments, that it is impossible ,but that offences will come ; yet it is the wisdom and object of every Government, but particularly of that constitution under which we have the happiness to live, to endeavour to diminish their number in as great a degree as the nature of things will adınit. Where perfection is denied, prudence consists in aiming at the best that is practicable ; and true excellence, in attaining it. The prevention of injustice, or the maxim, Of two evils chuse the least, is the principle which pervades almost the whole system of English jurisprudence.
A man is as much bound by every religious and moral consideration to discharge a debt or compensate an injury after six years, as he was the moment after he had contracted the one, or had been guilty of the other ; but the Law permits him to do an act of great injustice by pleading a limitation of time in bar to the demand for satisfaction. Those who inade this law had found, by experience, that, for want of such a defence, much dishonesty
was practised in claiming and recovering debts which either had been discharged, or which had Ņever existed : and though such a plea, by a person who is conscious he has never satisfied a fair and righteous demand, is as great an act of villainy, yet the Legislature of this country wisely thought; that by the introduction of such a statute* the sum of injustice would be considerably diminished. It was not intended as a weapon of offence, but a shield to protect. Paper, parchment, and sealing-wax can give no efficacy to the moral obligation of a promise or contract; but when verbal engagements were carried into execution by our courts of justice, it was discovered that much villainy and perjury were cominitted by swearing to contracts which never had existed, or where the terms of them were quite different froin those sworn to: and though he who denies a real contract is not a much better man than he who swears to a false one, yet the Legislature thought that less injustice, upon the whole, would be done, if many of the most important contracts in society were not enforced by courts of justice, unless a written instrument was produced as the most certain evidence of their existence f.
* 21 Jac. I. c. 16. + 29 Car. II. C.3. An act for prevention of frauds and
The same principle prevails in a great part of the Cominon Law. The moralists tells us, that fides servanda est, or, That every man is bound to keep a promise which has been accepted, or has raised expectation : but it is a inaxim both of the Roman Law, and the Common Law of England, Er nudo pacto non oritur actio, or, That no simple contract can be enforced in a court of justice which is made without an equivalent; which is technically called, consideration;—the law having wisely deemed, that less injury would be done to society if courts of justice took no cognizance of rash and precipitate promises : and it afforded a strong presumption that all promises were made without due consideration or deliberation, when no reciprocal benefit accrued to him who had made the promise.*
If a gentleman were paying his addresses to a lady where there was no disparity in their circumstances or impropriety in their union, it could scarce be considered a violation of morality if he should give a bond, note, or promise to any person who could promote his success : but a slight knowledge of human nature, or an experience of the world, would soon instruct us, that any person,
** But where an engagement is entered into with the solemnities of a sealed instrument, it precludes the presumption of a want of due consideration, and no equivalent is necessary. This is called, A special contract, or A contract ly specialty