beneficial to the public at large; but it would be hard to maintain that the interests of the suitors were consulted exclusively, or even mainly, in thus allowing them the privilege of deciding their quarrels by chance. In these cases the courts had not yet assumed the jurisdiction of themselves deciding according to settled law, which was ultimately found the most effectual means of suppressing the evil for which it was substituted.

It would seem, therefore, that the State, in assuming the exclusive dispensation of justice, for purposes entirely subservient to its own interests, should do so at its own cost; but that the suitor has no claim to be relieved of his own peculiar costs, being those occasioned by his appeal to the judicature, and the maintenance of his cause before it.

A few important subsidiary arguments and explanations remain yet to be noticed.

The rule of law, as between the plaintiff and the defendant, throws all the costs on the loser. It is sometimes suggested that a like rule might be applied with respect to the costs of the court; that they might be fairly imposed on the loser by way of penalty for his false claim. It is imputed to the loser that he is in the wrong, and therefore should be made liable for the consequences. It appears to me that such a rule would be eminently unjust and unreasonable; nor do I think that the prevalence of this rule between the plaintiff and defendant can be accounted for by imputing moral blame on the loser. In causes turning on points of law, the rule operating between the parties would, it is true, be the necessary conclusion from the legal presumption that every one knows the law. If this presumption were as true in fact as it is sound in theory, the party wrong in his law would also be wrong, in fact, in his conduct, and would justly be made to pay for all the consequences of his wrong. But the presumption is purely theoretical, and is wholly misapplied as a foundation for practical reasoning. Moreover, it is not necessary for a satisfactory explanation of the rule where the law is really doubtful. Each party has at any rate equal means of ascertaining the law, and the same liberty of opinion in construing it, and by resorting to litigation he stakes his construction against that of

his opponent; and there seems at least no injustice that as between themselves their expenses should abide the event, and be thrown upon him whose construction is erroneous. Besides, it is a general principle pervading all civil transactions, that a party should be held responsible for his acts without any regard to his moral intentions; in accordance with which principle, the unsuccessful suitor becomes liable for costs, in the strict sense of an indemnity for the expenses of the proceedings rendered necessary by his own act, and not at all in the sense of a penalty. As between the State and each party, the case is very different. The same rule has no application at all. The doubt in the law is a real hardship upon the parties, and is the cause of their litigation. The State, which makes the law, is the creator of the doubt and the real cause of the litigation, and, therefore, should be held responsible for the costs of the decision. It cannot in justice call upon the parties who are embarrassed by the doubts in the law, to pay the expenses of courts which it is found necessary to appoint to decide them. It is true that the State is not responsible for the differences which arise respecting matters of fact, and therefore, where the dispute is of this kind, there is not the same special reason why the Court should decide it gratuitously; but the general reasons previously urged apply equally to disputes of both classes, provided that the dispute arises upon a genuine and honest doubt. The jury may be considered as, par excellence, the English constitutional tribunal for trials of fact; and it is worthy of remark that the services of juries are always rendered gratuitously, except where the suitor is not satisfied with the average common-sense of the country, and requires a special jury drawn from a superior class. Trial by jury in its origin appears to have exactly embodied the appeal to the neighbours for the settlement of disputes, which may be considered as the method of natural procedure.

It may be urged, however, that litigation is sometimes conducted from motives not honest or justifiable, and that it is advisable to cast all the costs of the court upon the suitor, in order to repress frivolous and vexatious litigation. The only

justifiable ends of litigation, which the institution of it is designed to satisfy, are those already referred to, namely, the settlement of doubts as to the law, and of differences on matters of fact. A third cause of litigation is often found, in fact, in the wilful assertion of unjust claims and repudiation of just ones; the former dictated by motives of annoyance or extortion, the latter for the purpose of annoyance or delay. But the legitimate ends of litigation only are strictly admissible to consideration in the present discussion. Where there is no real matter in difference either of law or of fact, the suit can have but one result, adverse to the party who promotes it without a cause. The motives of maintaining such a suit can have no further effect than to occasion unnecessary proceedings and costs. A groundless suit is an abuse of the process of the court. Courts were not established nor rules of procedure framed for such cases, and they throw no light upon their organization, further than as showing the necessity of stringent exceptional rules to meet them. There can be no question that the party knowingly in the wrong should be condemned in all expenses which he wilfully occasions. He can be entitled to no favour; his appearance as a suitor is a false pretence; and he may be justly made to pay all the costs both of his adversary and of the public. The proper mode of dealing with such a case, however, does not appear to have any bearing upon the question now before us, which arises only where the lawsuit is, so to speak, an honest one, the occasion of which is produced by a justifiable doubt, either as to matter of law or matter of fact. It is true that at the outset the real cause of the lawsuit is not discovered, and it is presumed that the parties are acting honestly, and that the suit is a matter of necessity; but if it should appear in the progress of the suit that it is maintained from sinister motives and upon frivolous grounds, every court has a sufficient jurisdiction to prevent the abuse of its process, and to stay the proceedings, throwing the costs upon the delinquent party. If these means are not sufficient, and if such abuses are of so frequent occurrence as to become a public inconve nience, they might be further met with suitable penalties.

But a strong line of demarcation should be drawn between the civil and criminal bearing of such conduct, and the proceedings of civil courts should not be made subservient to the repression of a public wrong. All suitors should not be subjected to loss and inconvenience in order to punish the misconduct of a few.

In applying the results of the above observations some difficulty may be found in fixing the limits between the functions of the court and those of the suitor. The common rules of procedure make no practical distinction of this kind. The whole course of litigation from first to last is brought under the jurisdiction of the court, and the court intervenes more or less at every step for the preservation of formal order and accuracy. The actual work of litigation is divided between the court and the suitors, with the view of most conveniently arriving at the final termination, but with little regard to their separate characteristic functions. For instance, it seems strictly the province of the court to analyze the opposite statements of the suitors, to balance one against the other, to refer contradictions to trial, and to apply the law,-to reason, deliberate, and decide. Yet in our system of procedure the analysis of the dispute, and the elimination of the issues, is effected by pleadings; and the costs and conduct of the pleadings are thrown wholly upon the suitors, who are also called upon to supply the court with reasoning and argument. The suitors, in these respects, are made to perform in some degree the functions of the court. On the other hand, the court does much for the suitors; it assists in summoning the defendant and the witnesses; it executes the judgment and puts the party entitled in possession of his property. In these offices the court seems to act rather as the agent and on behalf of the suitor, and it may be reasonably doubted whether the public should be called upon to pay for the assistance given to the suitor in supporting his own case, or for the costs occasioned by the obstinacy of a suitor in resisting process. The case may be put thus: the suitor applies to the court for the assistance of the public force; it may be said that as he wants it for his private affairs he should pay for it; but

the embarrassment and doubt felt by the court in answering his application, arising upon a consideration of the law and the facts, is peculiarly the difficulty of the court, and the imperfections of the law or of the judges should be made good by the public.

Where the lawsuit is an honest one the doubts of the judge are the chief difficulty and the chief cause of expense; for every good system of procedure gives facilities to suitors for presenting a case to the court in an amicable manner, with the fewest possible formalities, and at the least possible cost. Where the lawsuit is occasioned by the unreadiness or unwillingness to pay of the defendant, it is employed merely as a process for the collection of debts, which though undisputed are often found to require a gentle pressure to enforce. In such cases the strictly judicial functions of the court are seldom called into exercise, it being difficult if not impossible to extend litigation to a hearing, without a substantial ground of difference. There seems no reason why creditors should not be called upon to pay for the collection of their debts; but at the same time there certainly seems no inherent anomaly in the country providing an establishment for that purpose. Numerous associations exist for the protection of property and trade, to which the members contribute equally for the purpose of gratuitously providing legal assistance to those who suffer injury. The courts of justice might be regarded, in one point of view, as the instruments of an extended association for a similar object.

English jurisprudence, in early times, appears to have favoured the gratuitous administration of justice, but her later practice contradicts her early profession. The primitive conception of administering justice seems to have been unalloyed with mercenary motives. The emphatic declaration of Magna Charta "nulli vendemus justitiam," as delivered by the Crown on behalf of all courts of justice, implies a repudiation of pecuniary advantage of all kinds, and a promise of free access to all without fees. Sir E. Coke, commenting on the Statute of Gloucester, which first gave costs to the plaintiff, says, that by this statute it may be collected that "justice was good cheap of ancient times, for in King Alfred's time all writs