Front Page Titles (by Subject) CHAPTER I.: GENERAL VIEW—ENDS OF JUDICATURE. - The Works of Jeremy Bentham, vol. 2
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CHAPTER I.: GENERAL VIEW—ENDS OF JUDICATURE. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 2 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 2.
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GENERAL VIEW—ENDS OF JUDICATURE.
When the whole body of the Law has for its object the greatest happiness of the greatest number, the whole of the adjective branch taken together may be said to have two specific ends: the one positive, maximizing the execution and effect given to the substantive branch; the other negative, minimizing the evil, the hardship, in various shapes necessary to the accomplishment of the main specified end.
Between these two-pursuits the conflict is all pervading and perpetual. Whatsoever arrangement is taken for the attainment of the one end, it can scarcely avoid being in a greater or less degree obstructive to the attainment of the other end.
If, whether it be with a view to compensation merely, or to compensation and punishment together, measures of adequate strength for securing eventual forthcomingness on the part of the defendant—person and property included—be not taken, injured individuals, who are, or would, or should have been, prosecutors, or say pursuers, remain without redress—without indemnity for the past, or security for the future: if measures of more than adequate strength are taken, evil-doing defendants not only may be made to suffer more than is necessary; but, what is worse, hardship (to an indefinite amount) may be made to fall on the heads of men who have not in any way been evil-doers; and then not only with and by, but even without, any evil consciousness or evil intention on the pursuer’s side.
In this way the judicial establishment (how well and faithfully soever the duties of it may be performed) may be made the instrument of oppression, and even of depredation. No intellectual aptitude—no active aptitude—no appropriate knowledge or judgment on the part of the judge—can render him completely secure against so deplorable a result. No otherwise than through the medium of such information as comes in his way, or is obtainable by him, can he ever act, or forbear to act. If that information is false, and by means of its falsity deceptive, a wrong judgment is on his part unavoidable.
On this occasion, as on every other, the grand security of securities is publicity:—exposure—the completest exposure of the whole system of procedure—whatever is done by anybody, being done before the eyes of the universal public. By this means, appropriate moral aptitude may be maximized—appropriate intellectual aptitude may be maximized—appropriate active aptitude may be maximized. The greater the tutelary influence exercised over the judge by the public eye, the more intense will be the attention on each occasion bestowed by him, in the endeavour to obtain adequate knowledge, and give maturity and correctness to his judgment, as well as quickness to the exercise given on this occasion to his active faculties.
Still, however, against deception by false assertions and false evidence in other shapes, the soundest judgment can never be secure.
What remains, then, is, to provide what security can, without preponderate hardship be provided against falsity uttered by an individual coming in the character of a pursuer, with the view to subject to a hardship, a defendant on whose part no wrong has had place.
Of the necessity of making arrangements of this sort—of the difficulty that attaches upon the endeavour—no adequate conception can ever have been formed by those whose thoughts have been confined within the bounds of the field, occupied by the arrangements taken with this view in any body of law that has ever been in force. In every such body of law, the expense and vexation, attached without distinction to the operation of legal pursuit in every case, tend with a force proportioned to the aggregate force of the complicated mass of hardship, to the prevention of ungrounded and ill-grounded suits.
Such is its tendency, and such to a prodigious extent is its effect, independently of all intention and desire on the part of those by whom the system was framed, or those by whom application is made of the powers established by it. To the production of this thus far salutary result, not only is no such endeavour or desire necessary, but in spite of their most strenuous endeavours to the contrary, it could not be prevented from taking place.
At the same time, while without, and (to an even universally-indefinite extent) against any such intention, this mass of hardship is in this shape productive of good effects; in another shape it is to an unmeasurable extent productive of evil effects. It is an instrument put into the hands of the oppressor—of every oppressor who is rich and wicked enough to purchase the use of it, at the hands of those who, according to the intention of those by whom it was made, continue to reap the profit—an instrument, by which, under the yoke of one-tenth of the population, nine-tenths are kept in an oppressed state, and but for the salutary, though scarce perceptible influence of the public-opinion tribunal, would be kept in a state of the most abject slavery.
That, on the part of rulers, the evil is everywhere the result—not of oversight, or deficiency in intellectual aptitude, but of purposed intention and endeavour—is matter of demonstration. For everywhere not only are the obstacles in question left in full force, without any endeavour to remove or lessen them, but addition, and to a vast amount, is made to their force—made, too, by instruments of their own manufacture—made by them, with the manifestly-resulting effect, and thence with this unquestionable purpose, namely—the creation of law-taxes and law-fees: law-taxes imposed by the rulers for the increase of their own excessive opulence; law-fees, which in their legislative capacity they suffer their colleagues and instruments to exact for the increase of their own exorbitant wealth, thus amassed by the application of oppression to the purpose of depredation.
Thus, then, the endeavours of the philanthropist in the law may be expressed by this one problem: how to unite the maximization of redress for the injured in the character of pursuers, with the minimization of hardship on the innocent in the character of defendants.
These being the ends, the means may be stated as follows:—
1. In so far as necessary, under the name of security for eventual justiciability, on the plaintiff’s side, a condition imposed, to the obtainment of the judicial services for the alleged purpose of seeking redress for injury.
2. In case of an unjust demand, for the prevention of needless and unprofitable vexation and expense (such as might otherwise be imposed on individuals in the situation of defendants, by individuals placing themselves in the situation of plaintiffs,) a provision made, not only of eventual compensation but also of punishment, to be inflicted on those alone in whose instance the existence of blame, in one of two shapes, has been established.
These two shapes are—1. Evil consciousness; 2. Temerity or rashness.
By evil consciousness, understand, on the part of him by whom a suit is commenced or carried on, a consciousness of the injustice of it—of the non-existence of all adequate ground for it.
By temerity or rashness, understand the absence of that due attention, by which, if bestowed upon the subject, he by whom an unjust suit is commenced would have been rendered conscious of the injustice of it.
By way of punishment, suppose law-taxes enforced against such suitors as have been found to blame. Tax for vexatious pursuit: tax for vexatious defence.
In certain cases, assistance should be rendered at the expense of the public, or of spontaneously-contributing individuals; assistance afforded to persons to whom (whether on the pursuer’s or on the defendant’s side) the inability to defray the expense of pursuing the necessary means of obtaining justice would otherwise render them destitute of the means.
The sources of such expense are—
Procurement of evidence, in the case where expense is necessarily attached to the elicitation of it: namely,—1. In the case of oral evidence, the expense of conveyance to and from the abode of the proposed witness to and from the seat of judicature; 2. The expense of demurrage at the seat of judicature; 3. Loss of time, which, to those to whom time is an indispensable source of subsistence, is tantamout to expense; 4. In the case of written evidence, the expense of making the necessary transcripts. There is also the correspondent expense in the case of appeal.
The sources of receipt in all cases are—
1. Voluntary and gratuitous contributions on the part of judicial assessors and others, to whose cognizance the case has happened to make its way.
2. Under the eye of the judge, purchase of assistance for this purpose, by engagement to repay in case of success, together with a premium adequate to the risk.
3. A fund to be provided for this purpose at the expense of the public.
As to blame, independently of any which may have had place at the origin of the suit: on the part of the pursuer, in the case of a pursuit accompanied with the consciousness of its groundlessness; on the part of the defendant, a defence under the like consciousness of its groundlessness,—blame may have place on either side; and this as well on the part of him who knows himself to be in the wrong, as on the part of him who, being in the wrong, knows not that he is so. Such will be the case in so far as, on either side of the cause, arrangements are taken, having for their effect (whether they have or have not had for their object) the production of needless vexation or expense on the part of the opposite side.
As to the provision of fine or other punishment for vexatious pursuit or defence, if security in that shape were not provided, observe the evils that would ensue.
For the purpose of minimizing vexation and expense, or rather for the purpose of avoiding to create it one fundamental general rule is, exceptions excepted—obligation of personal appearance at the judgment-seat, on the part of all parties as well as witnesses.
Of this arrangement, the necessity to justice, that is to say, to all the necessary ends of justice, will be shown further on. For the purpose of the argument, let it here be previously assumed.
Now, then, observe the consequence.
Every person being compellable to appear at any time, and thus at all times, at the instance of any person or any number of persons appearing in the character of plaintiffs—and no person prevented from appearing in that character, or punishable for the vexation produced as above—the whole life of any person, or of persons in an indefinite number, might be completely occupied by calls to this effect: a tyranny exerciseable over all would thus be put into the hands of all—a tyranny, and of such sort as would have, amongst other effects, that of a licence to commit murder, by cutting off from men, in any number, the means of earning their subsistence.
Of the demand by which commencement is given to a suit, what in every case is the object? Answer: In every case, to give execution and effect to the corresponding portion of the law.
Good. But as many as are the different remedies, and so many as are the different forms and proportions in which they are capable of being applied, and, to suit the individual wrong or individual right in question, require to be applied—how can the same course of procedure, or even any small number of different courses of procedure, be in itself applicable, or be capable of being made applicable to each?
Answer: In this way. What they have in common is this:—For the judge to be able to give execution and effect to the appropriate portion of law involved, whatever it may turn out to be, what is necessary is,—that the means of execution be in his power—at his disposal—in his possession, or at his command. These are the person, reputation, property, and in certain respects, condition in life, of the parties, and in particular of the defendant, together with any such miscellaneous valuable right as it may happen to the party to be in possession of.
But omitting, for shortness, reputation and condition in life, for placing the person and property at the judge’s disposal, the means requisite are exactly the same, whatsoever may be the disposition which, by his ultimate terminative decree, he may deem it advisable to make of them. In regard to the person, to keep it in confinement for a single day, or for the whole of life—or, supposing the law to permit it, to substitute death to life. Thus it is, that in the case of the most trifling pecuniary demand, and in the case where the whole property of the defendant—his personal liberty, during the whole of his life, or even his life itself,—is at stake, the means, if not of actual execution, of being in a condition to order and effect actual execution, will be in every case the same.
In regard to these same means of execution, one considerable difference, alas! will be found to have place between the means of execution applying to the case where the remedy required is of the most burthensome kind to the proposed defendant, and that in which it is of the least burthensome kind. The more urgent the need which the party on the pursuer’s side may have of the remedy sought by him at the charge of the defendant’s side, the greater the need there is of the judge’s putting himself in the possession of the physical faculty of applying the appropriate remedy, how burthensome soever to the defendant. But in many cases, the determining to wait till full proof can have been made of the justice of the demand, would be in effect to render the fulfilment of the duty of giving execution and effect to the appropriate portion of substantive law impossible: for, in the meantime, and while the proof was in collection, person and property would be out of the reach of the judge. Thus, in cases of a certain degree of importance, the need of a sort of provisional means of execution, of which in these cases the eventual good has a preponderance over the actual evil.
In regard to the means of probation, the coincidence is still more entire. Be the demand what it may—be the appropriate means of execution and effect what they may, the evidence adapted to the purpose of obtaining credence for the alleged matter of fact in question will be the same: the means requisite to be taken for coming at the source of the evidence, and eliciting it from its sources in the best shape, will always be the same.
True it is, that in this case, as in that of giving execution to the law, the proper answer to the question, whether to obtain the alleged evidence, or to leave it unobtained, will depend upon the ratio of the lot of evil to the lot of good—the evil in the shape of delay, vexation, and expense, from the elicitation of the evidence,—and the good from its conduciveness to right decision, in other words, the security it affords against deceit and mendacity, by either of which execution and effect would be prevented from being given to the law.
On this occasion, if of half-a-dozen different sorts of judicatories under the same government,—each of them, for the ascertaining of the truth in relation to one and the same alleged matter of fact, pursues a different course in relation to evidence,—in the wrong they may be, all of them, and are—in the right, courses more than one there cannot be.
Means of communication, of persons needful with persons needful, and of persons needful with things needful:—be the demand what it may, be the particular mode of execution what it may, be the facts of the case what they may, be the appropriate sources of evidence, and the mode of eliciting it, what they may,—the means best adapted to the purposes of effecting the communication necessary between the persons and things in question cannot in any case be different. As to the question,—will it, in the present case, for the purpose of obtaining the evidence, be worth while to employ the means of communication necessary for that purpose? In this case, as in the former, the balance may in some cases require to be taken in hand, and the good expected from employing the necessary means of communication, weighed against the evil inseparable from the employing them.