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Decisions of the Superior Courts of New South Wales, 1788-1899

Abuses of Law [1835] NSWSupC 34

Sydney Herald, attitude to law and lawyers - precedent, comments on - equity, comments on - civil procedure, comments on

Source: Sydney Herald, 20 April 1835[ 1]

The abuses of English Law have, for some time back, engaged the attention of nearly all the editorial Pens in London.  A dead set has been made against the "Black Sheep of the Law," men whose roguery in all its branches has been detected and exposed with great ability.  Even the code of Law itself has not escaped reprehension.  The endless Chancey suits, the sanguinary edicts of the Criminal Law, the Involutions of Conveyancing, the wire-drawn hair-splitting technicalities of civil process, and its trifling gradations and distinctions, partaking not of the principle of Justice, but of the spirit of mischievous litigation, have for many years occasioned deep disgust in every reflecting mind.  But above all, the facilities enjoyed by the  disreputable part of the profession, to frustrate just and legal suits by chancery, and the enormous expences [sic] incurred by prosecuting them, have been the scandal of the profession, and the bane of society. a preponderance has been given to wealth, which if not directly, has all the means indirectly of impeding the course of Justice, or of preventing its application to less powerful members of the social compact.  Like a bird in the toils of the fowler, the suitor when once entangled in the meshes of the legal net, forfeits his liberty and his property. The beacon that it led him upon the Rocks disappears, through the carelessness or the incapacity of the dispensers of Justice; the legal pilot frequently becomes helpless through ignorance or something worse, and the suitor is generally left an impoverished member of society.

Whether the days spent by the suitor in feverish perplexity, regarding his suit, all the expenses and which swallow up the proceeds of a successful process, are the more harassing of the annoyances with which he is beset, it is most difficult to say.  But, perhaps, the greatest of all the evils is the certainty that the decision of some vitally important suit may depend upon, or be influenced by, the stupidity or cupidity of some agent of  inferior knowledge and capacity, who may transact the minor arrangements of his law process.  The mistake of one word for another, a misnomer, the absence or redundancy of a  letter, may under the present system, destroy the hopes of Justice, and plunge a suitor once more into a new suit with additional expenses.  The whole range of Law, as it is generally practised, is behind the age; and the multiplicity of the Statutes is such, that it requires a life time to know what is, and what is not, law, under the present reign of Judicature.

Besides, as precedents are admitted into Courts of Justice, your case is decided by the opinions of men who have been dead for centuries, whose notions were cast in a different mould from those of the present generation, and whose Law and Logic were often times equalled only by their prostration of talent, and their leaning to the principles of arbitrary power, and to the establishment of general ignorance.

When one examines attentively the principles of the system, and the objects to be gained by Law, he is at a loss whether most to blame the Suitor, or the "limb of the Law," who rides on the back of the long eared victim, and spurs him on to his ruin.  The Suitor has this plea, that he must resort to some tribunal to protect his interests and preserve his property; and the general ignorance of the forms of Law prevents him from pleading in his own person, as in times of legal purity in past ages, and as practised at this day in some Countries, which, in this respect, are to be admired for their wisdom.  He is driven into Court, perhaps with clean hands, while his opponent, with hands besmeared with pollution, sets his chance of success on the intricacies of Law.  Justice is struck down right and left, and principle becomes a shuttlecock.  The scales of Justice are often deceptively balanced in this degenerative age, so that a grain of Law shall raise a pound of Equity; common honesty, and every principle of generosity, are destroyed by the "Black Sheep," who feed on the rank pasture of corruption.

On the other hand, while the "limb of Law" acts as a man of honor, (and we admit there are such persons who would no more pervert Justice that they would commit treason), his service is of the highest value to an honest Suitor with a just cause.  But from the appalling number of the "notorious majority," it may be presumed that the air of the Law Courts, under the present Law System, is dangerous to uprightness.  The noxious atmosphere spreads a false medium around the eyes.  Familiarity with chicanery, and the necessity of meeting villainy, reduces that corruption so deeply deplored by a every honest man.  The propriety of the pleadings for or against justice, is measured by the magnitude of the fee; and the upholding the worst of cases on worst of principles, paralyses the sentiments of the greater number of Lawyers, and renders them, unconsciously, the victims or the practisers of delusion and deception.

While there are in existence, therefore, such things as dishonesty and law, there will be suitors and lawyers; and while duplicity spreads her snares on one side, they will be met by artifice on the other.  While a monopoly of information on legal subjects is the property of a few of the craft, there must be the millions to prey upon with impunity; and while human nature is constituted as it is, there will be instances of obstinate clients and pliant lawyers.  But the question has often been propounded, why might not the system be purified and circumscribed?  What should prevent litigants submitting their disputes to the decision of honest arbitrators?  If perfectly unbiassed [sic] their decision might be held as binding, without the formalities of law, as with them.  What should prevent litigants from submitting their cases to the inspection of a few unbiassed [sic] men who should recommend the settlement of disputes on principles of equity?  What should prevent our Council from granting facilities for this purpose by enactments; or society from giving it countenance by uniform approval?  Thousands of suits bringing eventual ruin on families might be prevented by this process, and tribes of litigants and lawyers removed from society.  To all debts above £10, and to all disputed claims the principle would apply, while on a certificate that arbitration had been resorted to without effect, the Law Courts would be open as before.  Conveyancing in all that branches would form as it now does the most useful and the most honourable portion of a lawyer's professional practice.  When the litigant's passions also had subsided, the cheapness of the decision would console him for the absence of that pomp which his case might have secured in a King's Court before a Supreme Judge; and would reconcile him to the homely way in which the decision had been effected.

This plan is not new.  It has been working in silence and gathering strength for many years.  First of all the whole body of Quakers in England and America repudiate any recourse to law, and settle all suits amongst themselves without expence [sic] or formal procedure.  Their decisions give satisfaction, and we do not see that Justices is less prevalent among that body for the absence of legal forms.

Even in London, however, the principle has been gaining advocates.  There is, and has been for some years, an "Equitable Adjustment and Arbitration Society" in existence, consisting of a body of the most respectable men in the city, whose object is to decide disputed claims by arbitration, where points of law are not involved, which can not be settled except in a Court of Justice.

Besides, it is somewhat remarkable that in Mexico, one of the newest Republics in America, this principle exists, not by private agreement, as in the case of the Arbitration Society, but by the law of the land. No law suit can be instituted in any court till a certificate has been obtained from the Alcade, or officer of the arbitration court, that the case had been regularly tried buying a arbitration, but had not been attended with satisfaction to the parties or to be settlement of a point of Law.  The parties may then have their fill of Law, if they can pay for it; but not till the state is satisfied that the law suit is fit for a Court of Justice, paid at public expense, whose valuable time therefore must not be occupied by fruitless and frivolous disputes.  Multitudes of disputed points are thus settled before approaching the steps of the Court of Justice.  The parties perceive one anothers strength and their own weaknesses, and, like wise men, end the quarrel over a Cigarro, and a cup of Aguardiente.

It may be asked what should prevent recourse to such an expedient in this Colony, famous for litigation?  Its advantages are obvious, its execution easy, and its principles tried.  What should prevent some of our respectable Merchants Settlers and Traders, from commencing such a practice for the benefit of themselves and their fellow members in society?  It is to be hoped that some honest and respectable men will take immediate steps  for the formation of an Arbitration Society.  Arbitrators might be appointed; evidence might be taken down and sworn to before a magistrate, and bonds taken  4 adherence to the decision of the arbitrators.  A small subscription, say  one or two pounds, at the outset or annually, should constitute the parties members; the funds to be applied to the uses of the Society.  The interest on the whole sum could be applied in like manner - for charitable purposes, for donations to Colleges, for a public Law Library, or for the payment of a salary to a clever Barrister, for Lectures on the general principles of Law. By these means the mystery of chicanery would be  unfolded.  Our colonial Lawyers, ``of repute and good fame," would, from their honesty and independence, have sufficient employment in the varied duties of their profession.  The duties of the Judges would be diminished.  They would restrict their services to Criminal Cases, or important Law suits.  Besides, the diffusion of legal information joined with the equity of common sense, would form an admirable safeguard against the assumption of despotic Law on the part of Councillors or of Courts.

 It is much to be wished that some such steps were taken, by some of our enlightened Colonists.  The utility of the project would recommend itself to general adoption; and we should speedily find the ``Black Sheep" of the Law renewing their youth, and becoming ``Lamb Skin" practitioners,pure as the virgin parchment a on which are described their laws.

 Our readers will peruse the following observations upon the subject, extracted from an American publication, with interest.  The principle is highly commendable, and its extension should be promoted by every prudent man in our Society.  It is astonishing that men of sense have been said dilatory in adopting the principle, which is as clear and perceptible as the light itself.  The world, however, is daily progressing in knowledge; and it may be expected that  this Colony will not submit to the thraldom imposed on Europe by the iron net work of feudal law, which in numerous cases does not secure justice, but evades its principles.

``Many of men's errors arise from their real motives of action, which lead them to assign false motives to the actions of others.  Conversing with the principal leader of the federal party, who was an officer in our revolutionary war, he stated, as a general rule, that all men are governed by fear.  I told him, I had but one test of all general rules, that the one who made a rule should not make himself an exception to it, and therefore asked him if he was governed by fear, which he answered in the negative, an exemption, which as everyone had the same right to claim of course, the rule must cease to be general.  When our egotism, self-conceit, &c. assume, as motives of or own actions, disinterestedness, benevolence, philanthropy, patriotism, or any other of those imaginary motives, separate, distinct and independent of self, we deviate from truth and are on the high road of delusion, leading to false principles, vitiating all theories and practice founded on them, as all deductions from false premises must be erroneous.

``A simpleton consults but lawyer, under the delusion that the advice he pays for will conduce to his benefit; had he previously analysed his own motives and found they were all selfish, he would have applied the selfish principle to the lawyer, and being convinced that it was the lawyer's interest to involve him in a law suit, he would have been doubly cautious in following his advice.  For the lawyers are not to blame for using the advantage their superior knowledge, talent, dress, and address give them, to form strong combinations of laws, rules and regulations for the purpose of  governing, coercing, and in most tyrannising over the stupid ignorance of the millions.  It is the law of nature, followed by all the animals; the big fish eat the small; the strong beasts live at the expense of the weak, &c.  All nature, according to our imaginary morality, is horribly immoral.  Though with our neighbours in the animal scale, physical force domineers over physical weakness, it is in man alone where physical weakness tyrannises over physical strength, where the bodily feeble few, rule the corporeal strength of the many; a state of society resting solely on the ignorance of the millions.

`` Though the Quakers have for ages banished from their society the profession of law, and have taken the management of their affairs, into their own hands, by which great change in the social system they prosper and thrive better than any other sect or description of people, being more at their ease, and enjoying more comfort and happiness than any of their surrounding neighbours, as may be proved by the situation of the quakers in all countries where they have resided, yet notwithstanding the complete success of their experiment, no state, sect, or community, has yet followed their example. -  Had the Quakers improved a steam-engine valve, or spindle of a spinning machine, it would have spread over our whole continent in a few days, but their beneficial change in the state of society, that has been attested by the experience of ages to produce such immense advantages to mankind, has been left exclusively to themselves, as if the rest of the world were prohibited from doing anything to improve their condition.  The bayonets that protect despotism in the old European world, are a sufficient excuse to exonerate the millions from want of information or good will to meliorate their legal, political, or religious situation; but what excuse can candor give for the free citizens of this elective government by universal suffrage, for the apathetic negligence of their most essential interest, but the most shameful and indign and ignorance.

``In France, before the revolution, the laws was so complicated and litigious, and the judges and lawyers so corrupt, that it was common, before making a purchase of land, to inquire what distance it was to the nearest lawyer or parliament man, and if nearer than a few leagues it was sufficient to deter the purchaser from buying; valuing the land in the ratio of the distance from chicanery.  The merchants, finding it impossible to settle their disputes, established Chambers of Commerce in every mercantile town, where each in his turn presided, from whose award there was no appeal; and although no law or judicial authority existed to compel the execution of their sentence, yet he that refused to abide by their decision, was disabled from doing any business in the town, as no one would buy or sell with him; a species of coercion that deranged his interest more than the most rigorous verdict of the law.  In London all the time-bargains of the stocks are illegal and are gambling debts, and a black board is kept at the stock exchange, on which all the names of defaulters are inscribed, as the only punishment for not fulfilling their gambling engagements.  So complete a check is the dread of being put on the black board, that of the many thousand debtors every settling day, there is not a defaulter once a quarter; and when any fortunate transaction places the proscribed in a situation to make a compromise, by paying to the satisfaction of their creditors, they rarely omit getting their name struck off the black board.  As there is an operation of this kind so simple as to be carried into  successful practice by French merchants, London stock-jobbers, and the whole sect of Quakers, it certainly could not be difficult for the most free and enlightened people on the globe, to substitute some rational mode of a guaranteeing themselves against the tyranny of absurd, despotic, feudal laws, and the exaction of swarms of lawyers who live on disputes, litigation, and the losses of others.

``If the humility of our good people, by pleading their mental inferiority to French traders, London stock-jobbers, and the whole race of Quakers, should prevent them from attempting to imitate an experiment that has succeeded in every instance where it has been tried, they might take advantage of the federation and try it only in one of the smallest states, whence, if it succeeded, they might venture to extend it to the others.  This is an advantage, attached to federations, which like many others has never been made use of, as if our wise rulers were afraid of finding out too many useful properties in our political association, so as to render  the millions too happy, to be obedient hewers of wood and drawers of water."

-Maclure's Essays, printed at New Harmony, North America.



[1 ] See also Sydney Herald, 23 April 1835; Australian, 15 May 1835; Sydney Herald, 18 June 1835; Australian,  25 August 1835.


Published by the Division of Law, Macquarie University