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CHAPTER III.: PROCEDURE—ITS RELATION TO THE REST OF THE LAW. - 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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PROCEDURE—ITS RELATION TO THE REST OF THE LAW.
A procedure code is an accessory code, which, as we have seen, has for its end in view, and occupation, the giving execution and effect to a correspondent principal code.
Hence comes a natural supposition: the substantive code should, as mathematicians say, be given, or the adjective can have no meaning; the substantive being throughout a necessary object of reference.
To a certain extent and degree, this is correct and undeniable. To a certain extent it does not apply. If it did apply to its whole extent, this work would, from first to last, be unintelligible and useless.
The procedure code, in so far as it is clear it ought to be, has for its purpose, and end, and occupation, two things: the exercising, for the avowed purposes mentioned in the substantive code, powers of all sorts over persons and things; and, in the next place, coming at the truth of the case in regard to matters of fact, to wit, such matters of fact as are necessary to give warrant and justification to the exercise of those same powers—say means of execution and means of proof, or, in one word, evidence. Of these two desiderata, the first mentioned is the first in the order of design, and in the order of importance. But in practice, that which is to constitute the warrant, must precede the operation for which it is to afford the warrant.
Here, then, comes the line of distinction—the distinction between that part of the proposed system of procedure, which may be given without the previous exhibition of any part of the system of substantive law, and that part which cannot. The means for coming at the truth, as to matters of fact, are the same in all cases; the means for obtaining and exercising the powers necessary to the giving execution and effect to the ordinances of substantive law, are the same in all cases.
But of this general application of machinery, different ordinances of substantive law require the application of different engines or instruments to be brought into exercise. On which occasion, which instrument shall be brought into exercise, and how applied—this will depend upon the particular portion or article of substantive law, to which, for the purpose of giving effect to it, application is to be made of it.
Taking possession of a man’s body, for the purpose of securing, on his part, compliance with ordinances—ordinances of the substantive law, and thence, those of adjective law employed in giving effect to them. This power, once possessed, is in its nature, applicable to any one purpose as well as any other: to the exaction of service in any shape—to the infliction of punishment in any shape.
So in regard to taking possession of a mass of property: to the above purpose is added, in this case, the allotment of it, in kind or in value, in satisfaction of debts due.
So in regard to the means of communication—of communication between person and person—of communication between persons and things, whether for the purpose of execution, or the purpose of proof—the catalogue of these will require to be a perfect one.
In a word, on looking over the titles of the several chapters of this work, it will be seen, that the points therein respectively brought to view, require all of them to be settled for every extensive substantive code that can be imagined.
But different judicial services—judicial service in different shapes—require so many different operations to be performed, for the application of the general apparatus of powers to their several particular purposes. Different modes of punishment require so many different operations, or sets of operations, to be performed in the application of the general powers over person, property, reputation, and condition in life—to be applied to the purpose of inflicting the particular species of suffering allotted to each species of offence. These, then, must all be given, ere the Procedure Code can be complete.
In the present outline, that which can be done, and accordingly is done, is the bringing to view the course which it is supposed is the best that can be pursued, for the purpose of giving execution and effect to the whole system of substantive law—execution and effect down to that stage in which the execution in each instance (in the instance of each service, and in the instance of each punishment) is actually to be done; the tenor of the definitive decree must be accommodated and adapted to the particular service—to the particular punishment.
On this occasion will be seen one broad feature, by which the here proposed code will be seen to stand distinguished from all codes that ever were established. If the one course here chalked out be the straight one, all those others will be recognized to be composed of aberrations, exhibiting variety of absurdity, and to the unhappy people productive of variety of wretchedness.
Another corollary, of which a general intimation may here be given, is the comparative smallness of the diversity between the course of procedure required for the giving execution and effect to the non-penal branch of substantive law, and the course requisite in the case of the penal branch. For giving appropriate execution and effect to the non-penal branch, appropriate proof must be obtained and employed, and appropriate means of execution provided and applied; and with little if any difference, these will serve as well for penal as for non-penal cases.
In the penal cases of the greatest severity, reluctance as to compliance on the part of the defendant will be greater than in any non-penal case: and for surmounting reluctance, adequate provision, so far as the nature of the case admits, must in every case be made. The reluctance will be as the affliction. But in cases decidedly non-penal, the affliction may, with little exception, be as great as any which, in the far greater number of penal cases, it will be found necessary to produce. Be a man’s property ever so vast, it is frequently, for a purely non-penal purpose—satisfaction to creditors—necessary to divest him of it; and many a man, rather than undergo this affliction, has doomed himself to, and actually suffered, imprisonment for life—for life, and that a very long one.
As to the aberrations—those aberrations by which the course of procedure has been rendered a course of such afflictive intricacy—they will be found all springing from one source,—the opposition of the actual ends of judicature to the ends of justice—the opposition between the interests of those by whose will that course has been regulated, and the interest of the people whose destiny has been disposed of by it.
By this one circumstance, every anomaly will be seen to be accounted for—every object rendered plain and clear: without it, every object will be obscure—the whole system will continue to present to view the same chaos as at present.
Doubtless, without a continual eye to the mass of substantive law in all its branches, no such outline of the course of procedure as the present could have been delineated: but in regard to the objects which it was necessary should be kept in view by the writer, it was not necessary that they should be presented to the view of the reader.
In a case of civil procedure, the previous existence of any offence is not supposed: what is supposed is the existence of a right on the part of some individual to apply to a court of justice, requesting the court to confer on him another correspondent right; but by conferring on the individual so applying the right so applied for, it can do no otherwise than create, on the part of some other individual, a correspondent obligation or mass of obligations: if the individual on whom the obligation in question is thus sought to be imposed, submits voluntarily to have it imposed on him, there is no lawsuit in the case: so, likewise, if without inquiring to know whether he is willing to receive it, the judge imposes it upon him of course.
But if the case be such that the judge, before he proceeds to impose the obligation so required to be imposed, causes application to be made to the party in question, to know whether he be content to have it imposed upon him, and upon such application so made to him, he refuses to submit to have it imposed on him, unless upon further order to be pronounced by the judge (upon hearing the reasons for and against the imposition of the obligation thus contended against)—in such case, a cause, suit, or litigation takes place, and such cause, suit, or litigation, is termed a civil one. In this case, as in the case of a penal one, an offence is still supposed as liable to be committed: nor without the idea of delinquency can this case any more than the other be understood; for in this case a judgment, with an order thereupon grounded, is supposed, in the event of the plaintiff’s gaining his cause, to be issued by the judge. But to the idea of a judicial order, the idea of an act of delinquency is necessarily annexed; for the order has no force, if any act performed in breach of such order be not considered and treated as an offence.
Both an act by which a penal suit is commenced, and an act by which a civil suit is commenced, suppose an act of delinquency or offence: the difference is, that the acts by which a penal suit is commenced, suppose an offence committed already; whereas an act by which a civil suit is commenced, does not suppose any offence committed already—does not suppose any offence as being about to be committed for certain: it supposes only that an offence will eventually be committed, if, upon the judge’s having created, as above, the obligation corresponding to the right required to be conferred, any act in breach of such obligation should come to be committed.
We proceed to the consideration of the several ends of procedure considered in respect of the penal branch of it. The ultimate ends of penal procedure are two. Of these, the main and positive end is the infliction of the punishment in question, including the administering of the several species of satisfaction attached to the lot of punishment in question, in the cases where mixed species of satisfaction respectively have place. The negative ultimate end is the non-infliction of the lot of punishment in question in each case, as the individual in question, in the event of his not having committed or been a partaker in the alleged individual offence, is entitled to have this protection of the innocent.
Collateral or incidental ends of penal procedure: the avoidance, as far as is possible, of the several inconveniences which, in a greater or less degree, are inseparable from the course of action by which a penal suit, action, or prosecution, as it is called, is carried on. These inconveniences, considered in respect of their origin, may be termed by one general or common appellation, juridical or legal vexation.
Of juridical vexations, the principal modifications may be enumerated as follows:—
1st, Consumption of time, understood in a way supposed to be unpleasant.
2d, Confinement in respect of place; obligation of being in some place in which it is unpleasant or prejudicial to a man to be; obligation of not being in some place in which it would be pleasant or advantageous to a man to be.
3d, Pecuniary expense, loss, or charge.
4th, Anxiety of mind, a pain grounded on the apprehension of being subjected to one or more of the modifications of inconvenience above mentioned. Of these several modifications of forensic vexation, the pecuniary expense is the most prominent; and this partly because the existence of it, in a degree worth regarding, is capable of being more precisely ascertained than in any of these other cases; partly because the amount of it is capable of being more exactly measured.
These inconveniences, or some of them, have a mutual tendency to increase and generate each other: confinement in respect of place will oftentimes be productive of pecuniary expense; pecuniary expense, or the apprehension of it, will be productive of confinement in respect of place, viz. in as far as, for the purpose of saving the expense, a man either stays at home, instead of going a journey, or goes a journey, instead of staying at home as he would have done otherwise.
The avoidance of delay is termed an end of the second order; because delay itself, though indisputably an inconvenience, is not in its effects distinguishable from the inconveniences of the first order—the inconveniences to which the several ends of the first order respectively bear reference; for into one or other of these same inconveniences it may in every case be resolved.
In speaking of delay, it must all along be understood, that to the business of the branch of procedure in question, as to every other business, a certain portion of time is altogether necessary; by delay, therefore, neither more nor less is understood than the consumption of any portion of time over and above the portion of time absolutely necessary—the portion of time that would be sufficient for the accomplishment of the several ends of procedure in their respective greatest degrees of perfection, whatever it may be.
So far as the delay continues, so far the main positive ultimate ends of procedure remain unaccomplished.
From delay, again, in certain cases, may arise a result contrary to the negative ultimate end of procedure; in other words, from delay may arise the conviction, and thence the punishment, of the non-guilty; as for example, by the deperition of evidence necessary to the proof of innocence.
From delay may arise forensic vexation in any of its already enumerated shapes.
The avoidance of precipitation may be ranked as an end of the second order, for the same reasons that apply to the case of delay. But the mass of inconvenience of which it is liable to be productive, is upon the whole even less considerable, or at least less diversified. In the case of delay there is a certain inconvenience; for so long as it lasts, there is a denial of justice: in the case of precipitation, there is no inconvenience, but what, in the first instance, is contingent. The inconveniences appertaining to precipitation are no other than the disaccomplishment or frustration of one or other of the two ultimate ends of procedure; in other words, they can scarcely consist of anything else but either the non-conviction of some one who is guilty, or the conviction of, and consequent punishment of, some one who is not guilty. Supposing it to be productive of either of these ultimate inconveniences, precipitation can scarcely be productive of any one of the collateral or incidental inconveniences, viz. local confinement and expense, unpleasant occupation, anxiety of mind: on the contrary, the effect of it is to reduce these several collateral inconveniences to a quantity inferior to that in which they would exist otherwise. In this point of view, so far from being productive of inconvenience, it is productive of advantage—an advantage which would be clear and desirable upon the whole, were it not for the chance of danger of which precipitation is productive, viz. the danger of giving birth to one or other of the two above-mentioned ultimate inconveniences—the inconveniences corresponding respectively to the two ultimate ends of this branch of procedure.
The idea of precipitation may be thus fixed and explained. A certain quantity of time is supposed to be necessary to give room for the several actions and reflections, on the part of the several individuals concerned, which are considered as necessary to afford to the judge the best chance for rendering justice; i. e. for the accomplishment of the two ultimate ends of procedure above mentioned.
Precipitation is considered as taking place, when in any part, anything is supposed to be struck off or defalcated, from the supposed necessary length of time. Thus, if a cause be supposed to be of that importance, that after the hearing of all the proofs, a less time than a week cannot, it is supposed, be sufficient, on the part of the judge, to be employed in the consideration of them, and the time employed by the judge in the consideration of them is no more than a single day; in such cases the judge must, by the supposition, be deemed chargeable with precipitation. If, then, in consequence of such supposed precipitation, the judgment actually given by the judge is repugnant to one or other of the ultimate ends of justice, in this case the mischief correspondent to such ultimate end is actually produced. But in the opposite case, i. e. if the decision of the judge be conformable to the ultimate ends of justice, no mischief at all is produced by precipitation: the contingency is not reduced to act; on the contrary, so far from being productive of inconvenience, the supposed precipitation is productive of advantage upon the whole, since by virtue of it as much time as corresponds to the delay thus saved, is saved.
Thus, again, if the time allowed by the judge for the appearance of a witness is but three days, and the time, which a person whose opinion is supposed to be the standard, would fix upon as necessary for the purpose, is four days, the judge would of course, in the opinion of such persons, stand chargeable with precipitation. If, then, the witness accordingly, for want of sufficient time, fail in making his appearance within the time in question, and for want of his appearance an unjust decision is given by the judge—a decision, contrary to one or other of the two ultimate ends of justice;—in such case, the contingent inconvenience attached to the supposed precipitation, is converted into a real one. But if, notwithstanding the supposed precipitation, the witness does make his appearance within the time, and that without any forensic vexation produced, on the part of him or anybody else (for example, without injury to his health, or to the value of his time, or increase of expense,)—in such case, the supposed precipitation turns out to be no real precipitation, or at least not to be productive of any ultimate inconvenience, nor of any prejudice to any of the ends of justice. On the contrary, the consequence, and only consequence of it, consists in a real and positive convenience, since a portion of delay, to the amount of a day, is saved.
However, even on this supposition, a certain degree of inconvenience may be produced by the precipitation, upon the whole. Since the idea of a judge, whose conduct is marked in general with precipitation, cannot but be productive of a general alarm, for want of the requisite measure of delay and consideration: each person conceiving himself liable to appear in the character of a suitor, will become apprehensive of seeing the ends of justice contravened to his prejudice: he will be apprehensive lest, if he become an accuser, the party whom he accuses be, for want of due consideration on the part of the judge, acquitted, though guilty; lest in the event of his coming under accusation, he may, for like want of consideration on the part of the judge, be convicted.
If the enumeration, made as above, of the several objects to be aimed at in the character of the ends of procedure, is proper as far as it goes, and complete, the several ends will furnish so many principles, by which the propriety of every regulation, proposed in the character of a regulation of procedure, may be tried.
Should any consideration present itself, which, serving in the character of a reason to evince the utility of the provision to which it is thus applied, shall at the same time appear incapable of being ranked under any of the above principles: in other words, though good in itself, i. e. serving to evince the utility of the provision in some other respect, it should be found not to be of a nature to evince the subserviency of the provision in question to any one of the above ends;—in such case, the enumeration of these ends—the enumeration of the correspondent principles—will in so far turn out to be incomplete; on the contrary, if no such independent reason be to be found, it follows that in this single chapter is contained a test by which the propriety of every imaginable provision of procedure may be tried and determined. And in that case, the pains taken in the investigation of them, and in exhibiting the nature of their relation to each other, will not have been ill bestowed.
This catalogue of ends, is it correct and complete, and the relation between the several articles accurately made out and established? The foundations of the rationale of procedure are then laid, and laid for ever. A standard is constructed, by which the propriety of every rule and disposition of law, in this behalf, that has anywhere been established, or can ever come to be proposed, may be tried and determined. A rule of established practice, established anywhere, in this behalf, is it defective in any respect, or supposed to be defective? It must be in respect of its tendency to produce some of the inconveniences corresponding to the above ends. A rule—is it proposed anywhere, as promising to occupy a useful place in the code of procedure? Its utility, if it possesses any, must consist in the tendency it has to be subservient, in some distinct and assignable way or other, to the attainment of one or more of those ends; to the prevention or diminution, in some way or other, of some one article or articles in the corresponding list of inconveniences.
A system of procedure, with what skill soever directed, will be liable, notwithstanding, to give birth to a variety of mischiefs, or say inconveniences. These mischiefs, various as they are, will however be found all of them reducible to the following heads:—
In the penal branch,
1. Impunity of delinquents.
2. Undue punishment, viz. punishment of non-delinquents, or punishment of delinquents otherwise than due.
In the non-penal branch,
3. Frustration of well-grounded claims.
4. Allowance of ill-grounded claims.
So many mischiefs as are liable to be found in a system of procedure, so many mischiefs to be avoided in every such system: so many mischiefs, the avoidance of which may in any such system be considered as respectively constituting so many ends to be kept in view.
If the catalogue of these mischiefs be complete, no provision that can be proposed can be entitled to a place in any such system, but in so far as it can be shown to be conducive to the attainment of one or more of these several ends.
If, at the same time, it is seen to be more conducive to one of these ends, than to another or others, to which it is sure to be repugnant, a comparative estimate will then be to be made; and for the purpose of this estimate, one point to be ascertained will be the comparative importance of the end or ends on both sides, i. e. of the mischiefs concerned on both sides; in the next place, the degree of conduciveness on the part of the provision in question with reference to each such end.
In casting an eye over the catalogue of these mischiefs, some may be observed, the avoidance of which—the complete avoidance—is, in conception at least, a possible result: to this head may be referred the four first articles, and the eighth,—impunity of delinquents—undue punishment—frustration of well-grounded claims—allowance of ill-grounded claims, and precipitation. Others there are, of which not even in conception can the exclusion appear possible: to this head belong the articles of expense, vexation, delay, and complication. Of these, it will be seen immediately, that to a certain degree they are inseparably and essentially attached to the business of procedure: in these instances, the object is not to exclude them altogether, that being plainly impossible, but on each occasion to reduce their respective degrees or quantities to minimum, to the lowest pitch possible.
In looking over the same list again in another point of view, another remark that may be made is, that in some of the instances the result thus given as mischievous is mischievous in its own nature. To this head belong, evidently enough, the first six articles—impunity of delinquents, undue punishment, frustration of well-grounded claims, allowance of ill-grounded claims, expense and vexation. In other instances, the result, though still indubitably mischievous, can hardly be said to be so in itself; it would not be so, were it not for the property it has of giving birth, or its tendency at least to give birth, to some one or more of the articles in the list last mentioned: to this head belong the other remaining articles—delay, precipitation, and complication.
Among the mischiefs of the first order, two, and two only, are such, that the ends corresponding to them can be said with propriety to constitute the direct and ultimate ends of the system of procedure. These are, in the penal branch, impunity of delinquency: in the non-penal branch, frustration of well-grounded claims. In the penal branch, the avoiding to administer punishment when undue, is certainly an end of very high importance, and altogether necessary to be attended to with unremitting and anxious care. It cannot, however, with any propriety, be stated as constituting an ultimate, a primary, a direct end of the system of procedure. Why? Because if there were no system of procedure at all, this end would be but the more completely and effectually accomplished.
This same observation may, it is equally evident, be extended with equal propriety to four other of the above ends—to that which consists in avoiding to give allowance to ill grounded claims, and to those which respectively consist in avoiding to give birth to those unhappily inseparable accompaniments of every system of procedure, viz. expense, and vexation in other shapes.
The two ultimate ends—avoidance to produce or suffer impunity on the part of delinquents—avoidance to produce or suffer frustration of well-grounded claims;—these two ends, though thus for the sake of unity, symmetry, and analogy, expressed in a negative form of words—in a phrase of a negative construction—are capable of being expressed more naturally and perspicuously by a phrase in the positive form: accomplishment of the punishment of delinquency—effectuation of well-grounded claims.
In the penal branch, the application of punishment, with its attendant masses of satisfaction in the case where the offence imputed has really been committed; the avoiding the employment of such coercive measures in every case where the offence has not been committed: in the civil branch, the collation of the right demanded, in the case where the collation of it is required by a correspondent provision of the substantive law—the collation of such right, and therewith and thereby, the creation of the correspondent group of obligations; the avoiding the employing those same coercive measures, in the case where the creation of the correspondent right is not required by the substantive law:—
All these measures, both in the penal branch and in the civil, the observance of all these conditions, is comprised in one expression, viz. rendering justice—taking that course in every case which coincides with the track marked out beforehand by the finger of the substantive law.
It being established, that the proper end and object of the system of procedure is to render justice as above explained,—the justice that will naturally be understood as that, the rendering of which is the end or object thus spoken of—is the real justice of the case: meaning by real justice, that which is such in contradistinction to whatever else may appear to be such—in other words, as before, that the course taken shall be what really is conformable to the indication given by the correspondent portion of substantive law, in contradistinction to what, if there be a difference, is in appearance, and but in appearance, thus conformable.
The distinction thus made wears the appearance of subtlety, and even useless subtlety; but when applied to practice, it will, besides being explained, be shown to be, in more points of view than one, of very considerable importance.
It will be seen, in the first place, that between real or abstract justice, and apparent justice, there is in many cases a very palpable difference: in the next place, that when they fail of coinciding, it is rather apparent justice, than real and abstract justice, that is the direct end, and immediately important object of the system of procedure.
In another work,* I have already had occasion to hold up to view, as a distinction of cardinal importance, the distinction between mischief of the first order and mischief of the second order; and so in like manner of good, in so far as that result is among the effects of the action in question, instead of evil as before. But it is only good or evil of the first order that constitutes the effect produced by real justice: the good and evil of the second order depends wholly and solely (speaking of immediate dependence) upon apparent justice. If the decision given, being a decision by which a man is subjected to punishment, be conformable to apparent justice,—in other words, if the universal persuasion, the persuasion entertained by everybody to whose notice this case presents itself, is that the man was guilty,—in such case, though by the supposition the decision is contrary to real justice, and though, in virtue of the suffering of the party punished, mischief of the first order is produced, yet the mischief remains barren; no mischief of the second order, or alarm, is, by the very supposition, produced by it.
Suppose, on the other hand, the party accused is really guilty of the offence: a decision is given, pronouncing him so, and he suffers accordingly: the decision is in this case, by the very supposition, conformable to real justice. But if it be unconformable to apparent justice, in other words, if according to universal persuasion the man is looked upon as not guilty, a mischief of the second order is produced—an alarm; and that alarm by the supposition is as strong as if the party, thus looked upon as innocent, had been so in reality.
In the same way, mutatis mutandis, the distinction between real and apparent justice may be applied in the non-penal branch of procedure. The distinction being thus explained, it remains now to bring to view, by way of example, a case, or a few cases, in which it is realized, and from thence to show, (what however will appear pretty clearly without much showing,) the importance and utility of this distinction in practice.
When, having been prosecuted, a man who in the general estimation of the public appears to have been guilty, is acquitted; by the observation of such acquittal,—by such impunity as in that case is said to be manifested by it, a mischief of the second order, an alarm at any rate, is produced.
A general apprehension is entertained of similar manifestations of delinquency, and similar mischiefs, as the probable result of such similar offences. Offences are apprehended, in the first place, from the agency of the individual himself, thus triumphing in impunity, and encouraged to go on in the path of guilt by the experienced receipt of the profit of the offence, clear of the punishment endeavoured by the substantive law to be attached to it: offences of the like description, or indeed in a greater or less degree of all descriptions, on the part of other individuals—of all individuals who, standing exposed to temptation, may by the observation of the impunity enjoyed in the instance in question, be disposed to yield to it. Such are the evil effects which, in a greater or less degree, take place, as often as a man who, in the general opinion of the public, appears to have been guilty, is observed to have escaped punishment.
If the case were such, that as well in the case of guilt, as in the case of innocence, reality and appearance always went together;—in that case, no such spectacle of impunity could by the supposition ever be exhibited. But in fact, this want of coincidence between real and apparent justice is observed to take place in but too many instances.
On this occasion, the repugnance admits of two evils, both equally conceivable. One is, that the party appearing in the eye of public opinion guilty, shall notwithstanding, at the conclusion of the suit, have been treated by the judge as innocent, in a manner unconformable to justice; in other words, shall have been acquitted.
The other is, that the party appearing in the eye of the public innocent, shall notwithstanding have been treated by the judge as guilty; in other words, shall have been convicted in a manner unconformable to justice.
Of these two cases, the former is a case that, as will be seen, is but too frequently realized. A variety of causes, each of them adequate to the production of the effect, and accordingly each of them very frequently producing it, will be mentioned further on.
The other is a case which, though not absolutely without example, is happily, there is reason to think, very seldom realized.
In regard to impunity, that the case of a man who, though guilty, and as such prosecuted, has notwithstanding been acquitted, is a frequent one, no person whatever—no judge, no advocate, no person, how partial soever in his affection to the established system, will ever attempt to deny: the utmost that any such person could ever think of affirming, and even this is more than persons so situated will in general be disposed to affirm, is—that when a man has thus been treated as innocent, and as such acquitted, he has accordingly been innocent in reality; and that the decision, though apparently unconformable to the disposition of the substantive law, was in reality conformable to it—that the decision, though not conformable to apparent justice, was conformable to real justice. The argument thus supposed, would very seldom indeed be found conformable to the fact; but what is material to the present purpose is, that even though it were conformable to the fact, it would not be sufficient for the justification of the system of procedure, in which the contrariety in question were manifested. That a system of procedure be good—that it be well adapted to its proper end, it is not sufficient that the decisions rendered in virtue of it be conformable to real justice; it is necessary that they should be conformable to apparent justice: to produce real justice, the only true way is to produce that which shall in the eye of public opinion be apparent justice. In point of utility, apparent justice is everything; real justice, abstractedly from apparent justice, is a useless abstraction, not worth pursuing, and supposing it contrary to apparent justice, such as ought not to be pursued.
From apparent justice flow all the good effects of justice—from real justice, if different from apparent, none.
On the other hand, in this same distinction may be observed a circumstance which operates in some degree as a remedy to a great deal of injustice—injustice which will be seen to be no less entitled to the appellation of real, than apparent injustice. In some cases, in some countries, it will happen, from causes that will be elsewhere mentioned, that although particular instances of injustice, at once real and apparent, are manifesting themselves every day, yet, from the operation of these causes, a considerable degree of confidence will notwithstanding be entertained in the system of procedure, as having a general tendency to produce, in the decisions given under it, a conformity to the prescriptions of justice. In this case, the opinion, though erroneous, and founded on prejudices capable of being pointed out, will, in the way above spoken of, be productive of salutary effects. Were the system viewed in its genuine colours, the alarm produced by it—the alarm of insecurity—would be extreme and universal. But by the effect of this prejudice the alarm is lessened; the mischiefs resulting from the imperfection of the system cannot, be the prejudice ever so strong, escape wholly from observation, but the mischiefs, instead of being ascribed to their real cause, the imperfections of the system of procedure, are ascribed to the nature of things. That justice very frequently fails of being done, is a truth too palpable to be disputed—too palpable to pass unobserved, or unacknowledged; but the notion is, that whenever it can be done, it is done; that if in any case it fails of being done, it is because in that case, in the nature of things, it cannot be done. The confidence in the system remains in a manner entire—as entire as if its title to that confidence were ever so real and indisputable.
[* ]Principles of Morals and Legislation. See Vol I. p. 69, et seq.