Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/164

 150 //. FROM THE llOO'S TO THE 1800'S The doing of " abstract justice " is, no doubt, an unwise ideal for any human tribunal to cherish. But long before the far more modest ideal of " substantial justice " arises in the minds of judges and legislators, the most exalted aim of courts of justice is to secure a " fair fight," of a kind which shall not disturb public order. And a subtle or wealthy litigant no more refrains from profiting by tricks or bribery, than a modern general refrains from exercising his skill or resources because he knows that his adversary is a fool. Early reforms in the administration of justice are really made in the interests of sport, rather than in the interests of what we call justice. Even now, the fascination of a great lawsuit, for the mass of men, lies in the excite- ment of the duel between plaintiff and defendant, or between CrowTi and prisoner, rather than in any desire to see justice reproved or wickedness punished. In early society, the Court Day is one of the few excitements in a monotonous existence; and unfair tricks and outrageous oppression are gradually prohibited, just as wide bats and " no balls " have been prohibited in cricket — because they spoil sport. The details of the Statute show that Edward's advisers thoroughly grasped this truth. They are far too technical to be set out here; but, broadly speaking, we may say, that they are aimed solely at preventing collusion, fraud, and delay, offences (as we should deem them) which are inconsistent with wholesome sport. The first obviously tends to deceive the spectators, and stands on the same footing as the " pull- ing " of a horse in the Derby. The second is always unpop- ular in a society which prefers the exercise of physical to mental force; and the third is obviously disappointing to people who have come a long way to see the performance, and are apt to lose the thread of the story if the intervals between the acts are too long. So the dowress, the life tenant, or other temporary occupant of land, who allows himself to be defeated in lawsuit by a collusive claimant, with a view to excluding his successor ; the husband who surrenders his estate that it may not pay dower to his widow; the guardian who takes advantage of his ward's minority to allow a stranger to exercise rights which properly belong to