XVII. But I cannot avoid making particular mention, of a certain
species of lies, which find ample protection with, and pass current
through the world, as if they were perfectly innocent; when in reality,
they are extremely injurious to the public. I mean judicial lies;
such, as when in stating a fact which gave rise to, or is the subject
matter of a litigation, the parties interested, and those employed in
the suit, disguise and disfigure it, to make it appear more favourable
to their own side. This species of deceit, or as I may say lie, is so
frequent, that we scarce see a cause in which it is not practised,
and in which, both parties agree in the state of the facts, on which
the matter in issue rests; and from hence arise the length of the
pleadings, and the principal delay, and great expence of law-suits. Who
can entertain a doubt, but that this is very injurious to the public?
Yet there is nobody will attempt finding out a remedy for the evil.
It might perhaps be asked, what remedy can be applied to it; but to
this I should answer, the remedy that is made use of in Japan. Among
those islanders, whose political government there is no doubt excells
ours in many particulars, they punish a judicial lie, or one advanced
in a legal process, with great severity; and the Algerines do the
same. Whoever lies, or when he is brought before the Bey, or any of
his judicial magistrates, to answer to a civil process, shall deny,
if the prosecution is for a debt, that he owes the person suing for
it the money in question, or if the prosecutor shall be found guilty
of making a false or unjust demand, in either of these cases, he who
shall be found to falsify, is adjudged to a rigorous bastinadoing.
Thus these causes are speedily and safely determined, nor is there the
least necessity for any writing in them, for the fear of that severe
punishment, deters any man from demanding what is not due to him, and
terrifies any one from denying a just debt. If something like this
method was to be adopted among us, law-suits of this sort in Spain,
would be as short as they are in those places. What delays law-suits,
is not so much the difficulty of finding out what the law is with
respect to the matter in question; but such delays arise for the most
part, from fallacious suggestions, and evasive statings of facts. If
the suitors, and all the parties concerned or employed in a cause,
knew, that for every fallacy they advanced, they were to pay a large
fine, they would be careful not to suggest or advance any thing, that
was not simply and exactly true. By this means, the parties would
soon be agreed as to the fact, and a determination would quickly be
made in favour of the person who had the right of his side, and there
would be nothing left to do, but for process to issue agreeable to the
ordinary forms of law, in order to enforce and compleat the judgment.
The doing of this, is seldom attended with much expence or delay; and
by adopting the before-mentioned method of proceeding, there would soon
be a stop put to all law-suits, that are founded on false or sinister
suggestions; and people would not be near so exposed to have vexatious
and roguish prosecutions commenced against them, as they are at
present. The state or public at large, would be great gainers by such a
regulation taking place, as the loss occasioned by the attendance, that
many artificers, and people employed in useful branches of trade are
obliged to give on courts of law would be avoided. So that the whole
loss that would be incurred by adopting this method, would fall on the
advocates, solicitors, and other men of the law; but this would be
amply compensated for to the state, by the increase it would occasion
of professors in useful arts.
XVIII. It is true, that our laws in Spain have not been so deficient in
this respect, as not to have assigned certain punishments in various
cases to judicial lies. One of those which is to be found among
the laws which we term the laws _de Partida_ seems to me admirably
calculated to suppress this evil. It runs thus: _He of whom any thing
is demanded judicially by another person, as his property, who shall
deny the person making the demand was ever possessed of it, shall,
if it is afterwards proved that the person who makes the demand was
possessed of it, be obliged to surrender it to him who demands it,
although the demander should not be able to prove the thing ever was
his property._ But I could wish in the first place, that both this law,
and all others of the same sort, should be extended to more cases than
they take in, or to speak more properly, to all cases whatever; so that
every judicial lie should be liable to a punishment, proportioned to
the mischief it might be attended with. I would wish secondly, that
some lawyers in expounding those laws, had given a larger extent to
them, and not have limited the operation of them but to few cases;
for we have reason to apprehend, that it is in consequence of these
expositions, that we very rarely or never, have seen any one punished
for this offence, at least I do not remember to have ever known, or to
have ever heard of any one that was punished for it. The greatest part
of the Judges, although there may appear but little reason for their
acting with lenity, are apt to lean to the compassionate side; but it
seems to me, that it would be for the good of the public, if upon these
occasions, they would exercise a proper degree of severity.