Front Page Titles (by Subject) CHAPTER II.: ENDS APT AND UNAPT. - The Works of Jeremy Bentham, vol. 2
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CHAPTER II.: ENDS APT AND UNAPT. - 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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ENDS APT AND UNAPT.
By the apt ends of judicature, understand the ends of justice, as per Chapter I.; by the unapt, all other ends.
The powers of judicature are the powers exercised by judges as such—exercised by judges (as to a greater or less proportion) in pursuance of their own will, but everywhere and at all times under the controul of a superior authority: in pure monarchies, that of the monarch—in the English monarchy, that of the monarch with the aristocracy under him, constituting together the parliament.
All power has had everywhere, and at all times, for the end of its exercise, the good, real or supposed, of those by whom it has been exercised.
In the formation of the English system of judicature, the judicial has ever been the active, the ordinarily-operative power; that of the monarch, with the rest of the parliament, the controuling only; the authority always capable of exercising that power, and now and then, but very rarely, actually exercising it.
The formation of English procedure began before parliaments were established.
Of this system, the pretended ends would of course always be (or at least have been, and on inquiry would be now) the ends of justice,—the ends of justice as above enumerated: the real end, and if not the sole end, at any rate the main and ultimate end, the good of the judges—of those members of the judicial establishment who have borne their respective parts in the framing of it;—the obtaining and securing for their use the greatest possible portion of the objects of general desire, and in those large masses which none but those amongst whom the powers of government are shared can possibly possess. These may be styled the sweets of government: power, wealth, factitious dignity; ease, at the expense of official duty, and vengeance at the expense of justice.
Hence then another, but not inconsistent account of the ends of judicature, is this: maximization of depredation and oppression. Of depredation, wealth is the fruit: of power, oppression and vengeance.
The only end of the English system that is ever brought to view, is—the keeping up the customs commenced in the darkest ages.
In every political community as yet in existence, widely different from the only proper, have been as yet the actual ends of judicature.
Judicature is a branch of government; the judicial system of the aggregate official establishment.
In every political state, the actual ends of government have been the maximization of the happiness of the aggregate of the persons bearing respectively a part in the exercise of the powers of government.
Proportioned to the share possessed by the judges (and their associates in the profession out of which they spring) in the powers of government, has been, in every political state, the degree in which their interests have been promoted, in and by the arrangements of law, at the expense of all rival interests. In pure and absolute monarchies, the men of law, of whom the judges formed a part, having neither power nor influence but what they derived from the monarch, have found themselves under the necessity of taking for the main object of their labours, the sinister interest of the monarch: and it is but by stealth, and in virtue of, and in proportion to, his ignorance or carelessness, that they have been able to introduce any arrangements favourable to their own sinister interest, at the expense of his.
Very different has their situation in this respect always been, in England. The grand instrument of despotism, a standing army, not having sprung up in England till a system of government, suited to the purpose of the judges and other lawyers had been formed by lawyers, the monarch, in the measures taken for the advancement of his own sinister interests, felt himself under the necessity of letting in their sinister interest for a considerable share of the benefit. Other hands, still more obsequious, could he have found them, would of course have been employed by him in preference; but no such hands did the nature of the case afford. In the field of law, covered as it was by a jungle of their own planting, none but themselves could find means to move. Awed by parliaments, which though in esse as unfrequently, and for as short a time as the craving rapacity of the monarch could contrive, were continually in posse, it was only by an obscure and tedious road that the judges could make their way in the prosecution of their designs: while, by fresh power and fresh sources of profit, as occasion offered, thrown into his hands, these ever-dependent creatures of his were ministering to his rapacity, he through ignorance or indolence connived all the while at theirs. While by fines and confiscations they were filling his coffers, by fees or addition to salary he connived at the rapacity practised by them for their own benefit.
This object, however, they found it beyond their power to accomplish, without a variety of false pretences. Lies accordingly were the instruments, by which on every occasion the dirty part of their work was done: and in such numbers, and of so gross a texture, were lies of rapacity uttered by them, that in the career of rapine and mendacity, all the most profligate of their brethren of the trade in other countries were left far behind.
In the accomplishment of their object, thus were they obliged to proceed in a retail way, and by short steps; taking money no otherwise than by the offer made of their services to the parties,—in the shape of fees; and these fees, considering the poverty of the greatest part of the contributors, separately taken, unavoidably small ones. At one time indeed they had formed higher projects: instead of picking it up by driblets in the shape of fees, they had begun to work for themselves as they had been used to do for the monarch, and confiscated whole estates at once to their own use, as they had been in the habit of doing to his. This being in a reign of remarkable weakness (that of Henry the Sixth,) it was by this weakness that they were probably emboldened to make so daring an experiment. The experiment was accordingly made. But though made with impunity, it was not made with success. A parliament there was, which, however impotent and disinclined with relation to any considerable good, was still willing and able to save its members and others from having their estates swallowed up in the gulph which had been thus dug for them.
Contrasted with the beheadings and embowellings, which in the hands of these same functionaries had been ordered for crimes of so much lighter a die, it is curious enough to observe the gentleness of the means employed by the parliament in its opposition to this project: a simple prohibition, and that clothed in the softest language.
In this way it was, that in England the actual ends of judicature became, as they are and as they continue to be, so widely different from the proper ends of judicature.
In regard to the number of suits, what the proper ends require is, that the number of sincere suits, and applications that are not rash, be maximized; that of insincere suits and applications minimized.
That the number of those that, not being rash, are sincere, be maximized—Why? Because on the part of every person, who in his own opinion, and that of his circle, has a right to a judicial service from a judge, and by the state of the laws finds himself precluded from the obtaining the effect of it, a feeling of oppressedness—an opinion of injustice on the part of the system of judicature—has place.
The number of those that are insincere, minimized—Why? Because if, in the opinion even of him who would institute them, they are unjust, and by reason of the vexation produced by them on the part of the defendant, oppressive,—so everybody else may safely stand assured they are.
In regard to rash suits that are not insincere: as to the number of these also, what the ends of justice require is, that they be lessened. Why? Because by those also vexation is produced. But for the lessening the number of these, arrangements of a nature so severe as those which may and should be employed for the lessening the number of the insincere, should not be employed; lest along with those which are sincere yet rash, those which are sincere and not rash be repressed, and thus the opinion of injustice and insecurity in a correspondent degree diffused. What in this case the ends of justice require is, that maximization be given to the number of those rash suits, in which the burthen of vexation is definitively (by means of compensation) taken off the shoulders of the party in the first instance vexed, and set down upon those of the vexer—the author of the vexation: for, in proportion as these conjoined effects are produced, the quantity of vexation is reduced on the part of the injured class, and with it the extent of the apprehension of the like injustice.
Now as to what, in relation to this subject, is required by the actual ends of judicature—required with more or less energy and effect, in every as yet known system of judicature, but with most of all by the English.
In regard to the number of suits, that the number of lawyer-profit-yielding suits, sincere and insincere, be maximized: of that of profitless suits, minimized.
That the number of lawyers’-profit-yielding suits be maximized—Why? Because,—but as to the cause, the case speaks for itself—lawyers’ labours and lawyers’ profits proportionable.
That the number of profitless suits be minimized—Why? Because, for every such suit, there would be lawyers’ labour (of such as were employed,) and no lawyers’ profit to sweeten it.
The lawyers (whose only profit, if any, came from the parties, and could not be compelled to serve the parties) would of course, if the inducement were taken away, leave their books, and escape from the service. Of judges, if paid by the public (and on condition of not receiving anything from the parties,) their interest and inclination would of course prompt them to wish, that of suits thus barren the number should be minimized; but they could not, as the hireling lawyers could, so far as regarded suits in which, if instituted, they would have been concerned, reduce it to nothing.
By law-taxes, profitless suits are reduced, but lawyers’-profit-yielding suits, in a certain proportion, reduced with them. By law-fees, profitless suits are reduced, though lawyer-profit-yielding suits are also reduced; yet in so far as limits are set to rapacity by prudence, the balance on the profit side is increased.
In England, not to speak of other countries, not only at no time has the system of procedure acted upon been in fact directed to the ends of justice, but at no time, by any person concerned in the carrying it on, has any such profession as that of its being directed to the ends of justice been ever made.
With what face, indeed, could they have been, by any English lawyer, laid down as the exclusively proper ones, or so much as simply the proper ones, seeing that the ends uniformly pursued by English judges (who, with here and there the exception of a scrap or two of legislative-made law, have been at the same time their own legislators) are in a state of perpetual opposition to the ends of justice?
Hence it is, that from beginning to end, an English book of procedure (book of practice is the name of such a book among English lawyers) presents no other object than a system of absurdity directed to no imaginable good end.
An all-comprehensive code of substantive law, having for its end in view (in so far as the ruling one, and the sub-ruling few, can be brought to admit of it) the greatest happiness of the greatest number, each part of it present, to the minds of all persons on whose conformity to its enactments its attainment of such its end depends:—an all-comprehensive code of adjective law, otherwise called a code of judicial procedure, having, for its end in view the giving, to the utmost possible amount, execution and effect to the enactments of the substantive code:—such is the description of the instruments which the people (in so far as apprised of their most important interests) look for, at the hands of the government:—such are the securities which in a government, in the breasts of the members of which any regard for the greatest happiness of the greatest number had place, would lose no time in bringing into existence.
Such are the indispensable instruments of felicity and security, which the implacable enemies of both—the lawyer tribe, underall its diversifications—will leave no stone unturned to prevent from coming into existence: the actually existing, indiscriminate defenders of right and wrong in one house—the quondum indiscriminate defenders of right and wrong, now exalted into exclusive defenders of wrong in another house.
It is a maxim with a certain class of reformists, not to give existence or support to any plan of reform, without the consent and guidance of those to whose particular and sinister interest it is in the strongest degree adverse; not to do away or to diminish any evil, but by the consent, and under the guidance of those by whom, for their own advantage, it has been created and preserved.
From this maxim, if consistently acted upon, some practical results, not unworthy of observation, would follow:—
For settling the terms of a code having for its object the prevention of smuggling in all its branches,—sole proper referees, a committee, or bench of twelve smugglers.
For a nocturnal-housebreaking-preventive code,—a committee of twelve nocturnal housebreakers.
For a highway-robbery-preventive code—a committee of highway robbers.
For a pocket-picking-preventive code, (in the physical sense of the word pocket-picking,)—a committee of unlicensed pickpockets.
For a swindling-preventive-code, or say an obtainment-on-false-pretences-preventive code,—a committee of swindlers called swindlers, or of swindlers called Masters in Chancery, including the Master of the Rolls; or a committee, bench, board, or jury—no matter which the appellation, so the apostolic number, twelve, be retained, composed de medietate; half of swindlers unlicensed, and unentrusted with the power of extortion—the other half licensed, and invested with the power of extortion, the jus extorquendi, the jus nocendi, in its most irresistible and profitable shape.
For a female-chastity-securing code,—a committee of twelve ladies-procuresses.
No housebreaker has an interest in preventing the abolition of housebreaking, no highwayman in preventing the abolition of highway robbery, no pickpocket in preventing the abolition of pocket-picking, no sinecurist or Master in Chancery, or other swindler, in preventing the abolition of the practice of obtaining money by false pretences, to lady-procuress in preventing the abolition of female unchastity:—no such practitioner, male or female, stands engaged to resist the abolition or curtailment of his or her means of livelihood, by any interest comparable in point of magnitude and intensity with that which an English judge has in preserving the rule of action from any change from which human misery would be lessened, and his own profit, which with so much ingenuity and success has been so intimately and inseparably interwoven with it, and rendered proportionable to it, reduced.
The Westminster-Hall common-law judges, in different groupes—in some instances collectively, in others severally—(shared among them as they can agree,) possess and exercise a power of making law—of making that which has the bad effect, without any of the good effect of law, ad libitum, without any controul but that of a legislature, which is in league with them by a community of sinister interest, and leaves to them the charge of exercising depredation and oppression, in cases in which fear or shame would prevent its operating to that effect by its own hands.
Lord Tenterden dismisses unpunished (indeed, how could he have done otherwise?) an extortioner, with whom he has a fellow feeling, with whom he is in partnership, whose profit is his profit. This fact has been held up to the view of Mr. Peel, and Mr. Peel will do nothing without the advice and consent of Lord Tenterden, whose wisdom, magnanimity, disinterestedness, and public spirit, he can never sufficiently admire.
Upon the money which,—instead of being secured to and divided between the distressed debtor and his frequently no less distressed creditor, the gaoler (dignified with the title of Marshal) of the prison called the King’s Bench prison,—this gaoler can contrive to squeeze into his own pocket, depends the value of the place to the possessor, and thence to the patron, the Chief-justice of the said King’s Bench.
Into the mind of a Member not in office, suppose any such conception to have found entrance, as that the money of a debtor would be more beneficially disposed of, if divided amongst his creditors, than if divided between the Marshal and the Chief-justice of the King’s Bench,—and to move for leave to bring in a bill for this purpose—what, in such a case, would be the course taken by Mr. Peel? He would cause it to be understood, that if the bill were entrusted to him he would take charge of it: a proposition, of the advantageousness of which it would not be possible for the member, be he who he may, not to be persuaded. The bill is now in Mr. Peel’s hands. What, then, if he acts with any consistency, will he do with it? He will recommend it to the care of Mr. Jones* and Lord Tenterden, and will be guided altogether by their invaluable assistance and advice.
A man, indicted for manslaughter by driving a load over the body of the deceased, was acquitted. Why? because he did not do the act? No: but because by Mr. Nobody-knows-who, who drew the indictment, the condition of the cavalry, in respect of sex, and aptitude for marriage (nomenclature is in this instance an operation of the most perilous delicacy,) had been averred; and by those who should have proved it, had not been proved. By the care of Mr. Peel’s sublaborators, in one of his bills, a clause had been inserted, by which the necessity of the averment in question, and proof made of it, would have been saved. But by the wisdom of a majority of those wise men of the West, it had been perceived, that by the omission of matter so indispensable in the eyes of the common law, “too great a laxity in pleading would have been introduced.”
One reason had been alleged why the defendant, if a murderer, should not suffer as such: and the reason was, that by the drawer of the indictment, the nature of the road had not, in point of law, been explained,—whether it was a king’s highway, or what else it was. This objection, formidable as it was, was overruled by the learned judge, Lord Chief-justice Best; whose liberality and sense of justice stood thus conspicuously manifested.
But the objection about the condition of the cavalry was too material and too strong, even for his Herculean shoulders. This objection was pronounced by him a fatal one: to have found it obviated by a clause in an act of Mr. Peel’s, had been his hope; but alas! on inspection, the clause was not be found.
Thus it is, that by the deliberate, and so recently declared judgment—that judgment a unanimous one, of the twelve Wise Men of the West—it is conclusively established, that (not to speak of other functionaries of the law) the power of granting effectual pardon to all criminals—murderers in particular, not excepted—belongs incontestibly to every person by whom the function of penning the instrument of accusation is performed.
With this licence, wanting to himself is every murderer, who, by his murders or otherwise, having provided himself with the money, omits to offer to the draughtsman whatever sum may be requisite, to the insertion of the mercy-administering surplusage: wanting to himself, disrespectful to the luminaries of the law—the twelve judges—is the draughtsman by whom so advantageous an offer is refused. What danger for him can there be, from the acceptance of it? So many of these omissions as there have been in time past, none of them producing any suspicion of sinister design: so easy, so frequent, such omissions without sinister design,—who shall be uncharitable enough to pronounce intentionality in any future instance, whatever it be?
By the functionary in question, true it is, that in consequence of the omission, a good sum of money, say a thousand pounds, has been received.
But from thence does it follow that it was really his intention that guilt should escape? Forbid it, candour!—forbid it, justice! The judges, are they not ministers of justice? This draughtsman, is he not a minister of justice likewise?
Let but a man be the minister of justice, and whatsoever be the quantity or quality of the mischief, in the production of which he is instrumental,—whatsoever be the quantity of the money which he gains by its being produced,—(in such sort, that were not the mischief produced, the money would not be received:) it is not to be supposed that it was his intention that mischief should be produced; it is not to be supposed that, whatsoever be the money gained by producing it, he will ever intentionally contribute to the production of it in future.
Captain Macheath, when, pistol in hand, he said to the passenger, “Give me your purse or you are a dead man,” and he received the purse with five guineas in it accordingly,—was it his intention to receive the money, and convert it to his own use? Yes: for his style and title was Captain Macheath. But suppose his style and title had been Mr. Justice Macheath—or suppose, that after having been convicted of the robbery, instead of the gallows he had been raised to the bench,—would he, even in the last case, have been guilty?—would it have been his intention either to have received the money, or to have shot the passenger, in the case of his not receiving it? Oh no: the patent of appointment would have relation backwards: nothing more easy, nothing more conformable to precedent. The King can do no wrong upon the throne. The King’s judge can do no wrong upon the King’s Bench—can he, Lord Tenterden?—can he, protector and partner of the tipstaff?
[* ]The late Marshal of the King’s Bench prison.