Procedural Injustice

One way to tell that a legal system has entered its decadent phase and is in need of reform is when its doctrines and procedures can be manipulated by parties to a dispute to ensure that something other than justice is done.

I came across an interesting example of this from the old English common law, before the great reforms of the nineteenth century. The particular example I have in mind was called “fourching by essoin”.

Put simply, an essoin was an excuse for non-appearance in court. There were several recognized forms of essoin. Probably the most common was essoin de malo lecti, pleading that one was bedridden with illness. There were other excuses: becoming ill on the way to court, being overseas, or being in the King’s service.

If a defendant used the plea of essoin de malo lecti, he was granted a year and a day to appear in court. If parceners or joint-owners of a property were sued, one joint-owner could plead sickness and be granted his year and a day’s grace. Upon the expiry of this period, the second joint-owner could do the same, buying another year and a day. Then the first joint-owner could plead his essoin again, carrying on the process. As A. W. B. Simpson related in his Introduction to the History of the Land Law (Oxford: Oxford University Press, 1961, p. 41), in one case the defendants carried this on for eight years, until one of them actually died, forcing the plaintiff to begin his suit all over again. Fourching was an ideal process for those with deep pockets, who could bankrupt an adversary by delays.

I suppose, if you owned land and were being sued over title, the best thing to do might be to find someone trusty to help you out, make them your joint-owner, and begin fourching your essoins. (Note that even the very existence of such an archaic legal jargon smacks of decadence.) Being more familiar with Roman law, I could give other examples of such collusive actions from that system.

Fourching by essoins is precisely the sort of thing that happens when procedures, or the mere forms of justice, begin to crowd out the dispensation of substantive justice. It is also the sort of thing that cannot be accomplished by mere laymen: it takes real professionals (read: lawyers) to come up with such abominations.