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CHAPTER VI.: ALL-COMPREHENSIVE ARRANGEMENTS. - 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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On no occasion can it fail to be matter of satisfaction to the mind, to feel that it has within its grasp the whole of the subject-matter which it has taken for consideration. But on every such occasion, a movement necessary to this purpose is the occupation of the universal vantage ground, by ascending to the summit of the porphyrian tree. To endeavour to communicate to the mind of the reader this pleasurable sensation, is the business of the present chapter.
Expressed at length, judicial procedure is the subject of the present work. This being premised and understood, procedure alone is the denomination which, for brevity’s sake, will in future be employed.
On every occasion, procedure has alike for its object the giving execution and effect to this or that article of the substantive branch of the law.
On every occasion, the substantive branch of law has for its objects one or other of two results: giving effect to some right, or applying the appropriate remedy to some wrong. Correspondent to these two objects of the substantive branch of law, are the two species of processes, called suits, in adjective law. Correspondent to effectuation of rights, is a simply requisitive suit. Correspondent to application of remedies to wrongs, are inculpative suits.
Judicial procedure is an aggregate of connected actions, exercised by divers actors; the first of which has, or professes to have, for its object, or say end in view, the giving on some individual occasion, for some individual purpose, execution and effect to some determinate portion or portions of the substantive code, or say branch, of law.
Procedure may be divided into—1. Operations; 2. Instruments; 3. Stages.
Operations are—1. Application; 2. Probation; 3. Security finding; 4. Counter-probation; 5. Execution.
Applications are either contestational or non-contestational. The contestational are suits. Suits are simply requisitive or inculpative.
The instruments of procedure are—1. Personal; 2. Real; 3. Written. Personal, the functionaries. Real, the judiciary apparatus. (See Constitutional Code.) Written, the contents of the Register.
Stages are—1. Original inquiry; 2. Quasi Jury inquiry; 3. Appellate inquiry.
Operators and operations. On this occasion, as on every other, be the end what it may, to one or other of these two heads will be found reducible whatsoever, in the relation and character of a means, is contributing to the compassing, or say accomplishing or fulfilling of it. Operator, the real entity; operation, the fictitious, emanating as it were from the real entity.
The idea attached to the word operation is a modification of the idea designated by the word action, as that is of the idea attached to the word motion.
Instead of the word operators, a convenience will be found in the use made of the word instruments. And though the existence of the real entity, an operator, is precedent, where it is not concomitant to the quasi-existence of the fictitious entity designated by the word operation,—yet for developing the idea designated on this occasion by the word operation, and bringing to view the several sorts of actions, it was found to claim, by an indisputable title, the precedence.
In the instrument called language, or say discourse, at any rate in all the generally known modifications of it, note on this occasion an imperfection, the inconvenient effects of which will be continually exemplifying themselves: the want of two different appellations for the designation,—one of the act, or say the operation—the other, of the result, whatever it be, of that same act or operation. The consequence is, the necessity of employing, for the designation of two ideas so widely different, one and the same word. Unfortunate indeed is the existence of this imperfection.
It pervades and fills with perplexity the whole texture of the language. Every word that terminates in tion, and many of them that terminate in ment (both derived from the Latin, and common to the Italian, French, Spanish, and Portuguese, as well as the English,) is infected with it.
Application is the act of a party—the party-pursuer—requiring execution, execution and effect, to be given to some article of the body of the law.
Execution, when ordered, is the act of the judge, rendering the service required at his hands by the suitor.
Probation is the act of the suitor, necessary to give warrant and authority for the service so demanded at the hands of the judge.
Execution requires to be distinguished and divided into ultimate and provisional.
Probation requires in like manner to be distinguished and divided into provisional and definitive: and that on the part as well of defendant as pursuer.
Of provisional execution, the need is accidental only, not general and constant. It consists in the doing that for a time, and in such sort, as to be eventually undone should the case be found not to require the performance of definitive execution: of which provisional execution, the performance is no otherwise consistently with justice performable, than as necessary to secure the eventual performance of definitive execution, should the case be found to require it.
By accommodation, understand that operation which is performed as often as a person, who is not a party to the suit, steps in and lends his assistance to a party on either side, for the purpose of saving him from an injustice, or hardship coupled with injustice, to which he might otherwise be subjected, in the course of the operations necessary to the prosecution of his pursuit or defence.
In so doing, the person by whom the accommodation is afforded, to one or other of the parties at least, and perhaps to both, subjects himself of necessity to one essential, and frequently to several distinct and contingent hardships: no other person is admissible for the purpose of liberating a party, on the one or the other side of the suit, from an otherwise inevitable present disadvantage.
Thus, in actual English technical practice, the two persons who, under the aggregate appellation of bail, are admitted to render to a party defendant the service which consists in causing him to be liberated from an imprisonment of indefinite duration, to which the rigour of the course of procedure would otherwise subject him, are not admitted to the performance of this beneficial service but upon condition of either eventually re-consigning him to that affictive situation, or discharging in favour of the pursuer the obligation, to subject him to which, was the object of the suit.
Subject to these conditions, the initiatory allegation has, to the purpose of warranting provisional execution (so shaped as not to be productive of irreparable damage,) the effect of probation, provisional probation. But, for the purpose of rendering the provisional execution definitive, it requires to be subjected to the controul of any such counter-evidence as may be adduced by the defendant, together with evidence, probative of facts, if any such there be, the tendency of which is, to do away with and render of no effect any facts to which it has happened to be sufficiently established by the evidence advanced on the pursuer’s side.
Intimate is the connexion between all these several operations: necessary are all of them but one, to wit, auxiliary bondsmanship, to the due termination of every suit, on the pursuer’s side.
In two opposite orders, they are capable of being brought to view:—1. The order in which they are contemplated; 2. The order in which they are performed.
In the order in which they are contemplated, they stand thus:—1. Application 2. Execution (execution being the only object to which the application is immediately directed;) 3. Probation, having for its object the engaging the judge to take measures for eventual execution.
Probation commences with application. Abhorrent to natural procedure is the distinction between allegation, or information, and evidence. In technical procedure alone—in that system alone which had for its object the generation of lies, for the purpose of maximizing the number of groundless suits and defences,—could any such distinction have originated. So many instances in which admission and effect is given to allegation, which, for the purpose of being punishable in case of mendacity, is not considered as evidence, so many instances in which admission and effect, and thereby allowance and encouragement, is given to mendacity. Innumerable are those instances: not a suit that does not commence with one of them; and of the endless chain of them, the first links are occupied in depriving of liberty any man at the pleasure of any other, by whom the faculty of exercising oppression in this shape is ready to be purchased of the judge at the estalished price.
Correspondent to operations are instruments. For every operation there must be an operator. If by a single action the operation is performed, there is no room for an instrument. Associated with the word operator, is the idea of an intelligent being; with the word instrument, that of a non-intelligent being: if, then, the appellative instrument is applied in speaking of a person, it must be in an improper and figurative sense; but to save words, using the word in this figurative sense will, notwithstanding its impropriety, be frequently found a matter of convenience.
Of the above-mentioned operations, the system called procedure has been found composed: to one or other of these heads, every operation performed in the course of it will be found reducible; for every one of those operations, therefore, there will be found instruments.
Beings being either persons or things, hence we have personal instruments and real instruments. But portions of discourse in a written form, partake of the nature of those two subject-matters of consideration and operation: being the discourse of persons communicated by a sort of things, and the use of them being so extended and so continual,—hence the need of speaking of a third sort of instruments, to wit, written; within the import of which must be understood to be comprehended quasi-written, for the purpose of those which, though not exactly of the nature of written signs, are nevertheless employed sometimes in the production of the effect.
Personal instruments are sub-operators—instruments in the hands of a super-operator; prekensors, for example, in the hands of the judge.
1. Correspondent to application—the operation—the fictitious, is applicant the operator, the real entity.
2. Correspondent to probation—the operation—the fictitious, is probator, the really existing entity. Probator is accordingly the term presented by analogy. Unfortunately, the idea it presents is too ample—it is that of the success of the operation termed probation; whereas little less frequently is the one followed by non-success than by success. To keep clear of misrepresentation, to the office here brought to view, another term, by which nothing is decided as to success, must be found: instead of probator, say then evidence-holder—an appellation unfortunately two-worded, for a single-worded one could not be found.
Instruments of application. Personal instruments are the applicants. Applicants may be either principal, or auxiliary—lending their assistance to the principal: and will be either professional or gratuitous. Thus on the occasion of every judicial application, whatsoever may be the object. So, in particular, on the occasion of that sort of application, to which it happens to be converted into a suit.
Real instruments of application, none.
Written instruments of application are any such portions of discourse in a written form, as it has happened to the application to give existence to.
Instruments of probation are personal, real, or written. Personal instruments of probation are persons, considered either in the character of narrating witnesses, or as posseasors of sources of real or of written evidence. In all three cases, there will be an advantage in speaking of them by the common appellation of evidence-holders; holden in the breast, until it is uttered, is the evidence of the narrating witness.
Narrating is the epithet applied to one species of witness, to distinguish him from a very different sort of witness (though the two characters are so frequently, as it is always desirable that they should be, is one person,) a percipient witness. In the breast of the percipient witness is the source of the information—the organ of the narrating witness is the channel through which it is communicated to the judge. Turbid are the ideas of lawyers under technical procedure; correspondently scanty, and in proportion inadequate, their vocabulary. Obvious at once, and necessary, is the distinction between the percipient and the narrating witness. Never till in this work, or those which have emanated from the same source, have words been employed in giving expression to it.
Yet how important is this distinction!—Small, indeed, it will be seen, is the probative force of the narrating witness, who has not been a percipient witness, in comparison of that of him who has.
Probative force—not even that term did the technical vocabulary contain in it. Yet, without it, in what way or by what discourse can you express that which there will be found such continually-recurring need to express.
Yet another distinction. For giving expression to it, say—litigant witness, or non-litigant witness: and as synonymous to non-litigant witness, say upon occasion, extraneous witness. In every modification of the technical system, of the testimony—the narrative of a party litigant, has more or less use been made; yet in none of them has he been spoken of in the character of a witness: on the contrary, between the character of a party and that of a witness, the existence of a sort of incompatibility has been tacitly assumed.
Yet in domestic procedure—in that procedure which, being coeval with the origin of the species, was in existence and use before the technical system existed, even in imagination—seldom is a narrator to be found, who is not either himself a litigant witness, or imbued with the same affection, and liable to be turned aside from the path of truth, by the same biases.
And oh what inconsistency—what twistings and turnings, when of one and the same party litigant the testimony is admitted in some cases, excluded in other cases—in some cases rigorously exacted, in other cases left optional! And from the commencement of the reign of technical procedure to the present time, how enormous must have been the mass of that injustice, of which this exclusion, and the unilateral, and thence partial, admissions deduced from this source, must have been productive! For these exclusions, coupled with these admissions, had there been any ground in reason, human society antecedently to the institution of the technical system, could not have continued its existence. But of this hereafter.
Accommodators. Novel as it is, as a substitute to the long-winded and many-worded appellation—the person by whom accommodation is afforded to another—this, or some other universal appellation, must of necessity be employed. Necessity warrants the appellation—practice will, ere long, familiarize the import of it.
A work of beneficence is, on every occasion, the work of the accommodator; of benevolence generally, and thence presumably; of beneficence constantly and unquestionably. Beneficent accommodator, is therefore a denomination by which, without impropriety in any shape, the accommodator might be designated. But for as much as there cannot exist an accommodator who is not beneficent, the word beneficent is not necessary, and after this explanation may be spared.
Correspondent in some sort, though very imperfectly and inadequately, to execution, is executioner. In a sense co-extensive with that of execution—in the phrase giving execution and effect, it is spoilt for use, by the association it has contracted with the idea of an operator exclusively employed in giving execution to a mandate of penal law, productive of an effect in the highest degree afflictive. For by the word executioner, when presented by itself, will be presented the idea of a functionary employed in giving termination to life, in the person of a defendant in the suit.
Another conjugate of the word execution, and, like executioner, the name of the really existing entity, is executor. But for use, as applied to the present purpose, this denomination is also spoilt: executor being the denomination given to the species of trustee, to whom, by the will of a person deceased, the disposal of his property, reckoning from the time of his decease, has been intrusted.
In case of need, for the designation of the person employed in giving execution and effect to a portion of law, the term executant may perhaps be found employable.
Correspondent to communication is communicator. Unfortunately, this word labours under the same imperfection, as the word probator has been seen labouring under. Included in the idea presented by it, is that of the effect endeavoured at, as being actually produced. The appellation on this occasion needed, is one by which a person employed in making, or endeavouring to make, communication of the subject-matter in question, shall be designated.
In case of need, as the word executant, so the word communicant, both of them related by analogy to the word applicant, may perhaps be found employable.
Correspondent to recordation is recordator—for shortness, termed recorder: correspondent to the synonymous appellation registration, is registrar. In this case these is no difficulty, no difference between endeavour and performance. He who records not anything is not a recorder: he who records anything is a recorder, be the recorded matter ever so little, or ever so much: and so in regard to the registrar.
Before any application can be made, there must be in existence an authority, to which at any time it can be made. This authority is that of the judge, sitting in that which has been called the judicial theatre. Of the several classes of persons who are as it were actors on that theatre—of their several fimetions and duties, a description has been given in the Constitutional Code, Chapters from XII. to XXIX. inclusive. Reference to that portion of matter must be understood to be made in and by everything that here follows.
Coeval with application and probation, is judication: as to application, under the natural system of procedure, all application is probative. Without the judge’s being at the same time applied to, and acting at the very time that he is applied to, an application cannot in any case have place. Without permission to proceed, no applicant can be suffered to proceed. Hence, then, it is by application made by an applicant that the first moment is occupied: but it is by the applicant and the judge in conjunction, that occupation is given to the next moment, and thereafter to the number of minutes whatever they are, during which, at the initiative hearing, the intercourse continues.
On each occasion, to what judicatory shall or may application be made? The answer is short, and will naturally be satisfactory: To that judicatory, from application to which, the aggregate convenience of the several parties may most effectually be promoted and provided for.
No difficulty can have place in those cases which will always be of by far the most frequent occurrence. These are, where the residence of both or all parties is within the territory of the same judicatory, and where the subject-matter of the suit is also within that same territory.
The only case in which any difficulty can present itself, is that in which, the actual residence of the party applying to be admitted pursuer being in the territory of that same judicatory, the actual residence of other parties, co-pursuers or defendants, is in the territory of a different judicatory—the actual residence of each one of them, being at the same time capable of being different from the habitual residence: hence, by ringing the changes upon these differences, the following different cases are producible.
For holding communication between a judge and a judgeable, the communication beginning with the judge, there are two modes—the oral and the epistolary. All other circumstances equal, the oral, it will be seen, is by far the best adapted to each of the several ends of justice: to the avoidance of non-decision and misdecision—to the avoidance of delay, vexation, and expense. But when the residence, habitual or actual, of the judgeable, is at a certain distance from the judicatory, then comes the question,—whether the advantage in respect of avoidance of non-decision and misdecision (to wit, through the inferior instructiveness of the evidence when elicited in the epistolary mode in comparison of the oral mode) preponderates or not.
On this consideration, exceptions (if any) excepted, no otherwise, it is understood, can application, if made, be entertained, than when made in the oral mode. And what is moreover understood is, that the judicial locations will be to such a degree numerous, and the plan of partition by which they are marked out, to such a degree equal, that from the attendance of a person at the judicatory, no considerable inconvenience will in general be produced.