Front Page Titles (by Subject) CHAPTER VIII.: JUDICIAL APPLICATION. - The Works of Jeremy Bentham, vol. 2
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CHAPTER VIII.: JUDICIAL APPLICATION. - 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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The system of judicial procedure, it has been seen, has for its proper object, the giving execution and effect to the ordinances of the legislature.
The functionary, by the exercise of whose function execution and effect is given to the ordinances of the legislature, is the judge. The means by which that result is produced, is the rendering to a person, who having need of it, makes application to him accordingly for the sort of service, by the rendering of which the result is produced. Name of such appropriate services—judicial services.
The species of application by which such judicial service is called for, call it a demand.
The aggregate of the whole operation produced by a judicial demand, from the demand to the last operation by which execution and effect is given to the portion of law in question, both inclusive,—call it a suit in law, or for shortness, a suit.
In English practice—by a denomination manifestly inappropriate and productive of continual confusion—it is also called a cause.
But the case in which a demand, made at the hands of a judge, for services tending to the giving execution and effect to some corresponding portion of the text of the law, is the service called for,—is but one out of several cases in which, for judicial service tending to the production of that effect, application may be made, and that application complied with.
Accordingly, of divers sorts of application, by each of which judicial services of the tendency in question are applied for, and demanded—the application called a judicial demand, and by which, if ordered, commencement is given to a suit, is but one.
By a judicial application, understand an application made to a judge as such—by any person other than a judge as such.
By any person who is desirous of obtaining judicial service in any shape, a judicial application may accordingly be made.
By judicial service, understand every such service as a judge, as such, is warranted by law in rendering to any person or persons.
The services which it belongs to a judge as such to render, will be mostly those which are rendered in contentious, or say contested cases,—that is to say, cases in which a suit has been instituted, and continues depending. But neither are cases wanting, in which, without any suit instituted, it belongs to the judge to render certain appropriate services. So many of these cases—so many are the different purposes, for which a judicial application may be made. Certain cases, moreover, there are, in which, for the adjustment of the different interests concerned, judicial services may be necessary, even where no disagreement as between party and party has taken place. Of this sort is the case where the demand made to the judge is simply requisitive, and not, with relation to any party, either criminative or inculpative.
It being desirable, in so far as practicable, that the territory in which the person in question will be most likely to be called upon to pay judiciary attendance, should be the territory in which he has his most ordinary habitation, in contradistinction, and in preference to, every more distant judicatory: hence it is desirable, that by persons in general, considered in respect of the need they may have to make judiciary application, it should be understood what, in the case of an applicant, is meant by his judicatory—as in the case of a judge, by his territory.
By the applicant’s judicatory, understand the judicatory belonging to and situate in the sub-district in which, as housekeeper or inmate, as per Election Code, the applicant has his settled habitation, if any such he has. If, in each of divers sub-districts, he has a settled habitation, or divers settled habitations, so many as there are of these sub-districts, so many are his judicatories.
To an applicant who has a settled habitation elsewhere, but not in the sub-district to the judicatory of which he makes his application—as also, to an applicant who has no settled abode,—the judicatory, whatsoever it be, to which, on the occasion in question, he makes such his application, is, on and for that occasion, his judicatory; say his occasional judicatory.
Of the facility thus afforded to persons in the character of judicial applicants, no increase of vexation to persons having occasion to act in a judicatory in any other character, such as that of a defendant, or that of a witness in a suit, will, it will be seen, be the result.
In every case, therefore, any person whose desire it is to make application to a judicatory for any purpose, may in the first instance make application to his own judicatory.
If, the design of his application being to commence a suit against any person, the domicile of that person is within the same local field of judicature, the case is in that respect the ordinary case. If such intended defendant has not any domicile within that same field, the case is in that respect an extraordinary case. It constitutes one of the natural causes of obstruction to the course of justice; provision for which is made elsewhere.
On hearing him, the judge will inform him what course to take.
Order of making application.
For all persons waiting to be heard as applicants, the station is in the visitors’ gallery: as to which, see Constitutional Code.
On entrance into the gallery, the intended applicant receives from the doorkeeper a ticket. The tickets are numbered in numerical order. He who, at or after the opening of the door, came first, received a ticket No. 1; he who came next, No. 2; and so on.
Immediately as the business of an applicant is finished, the judge or registrar makes a sign to the door-keeper of the gallery. The door-keeper, calling to the expectant applicant whose number entitles him to be next heard, looks at his ticket, and directs him forthwith to the applicant’s station.*
If applicants more than one are desirous of speaking on the same occasion and in support of the same application, they must first have agreed among themselves as to the order in which they shall speak; if the whole number persist in speaking together, they will all of them be made to withdraw, until they have agreed upon the order of procedure as above.
If, with desires mutually opposite, a number of applicants offer themselves to speak on the same occasion, in relation to the same matter, each struggling to be heard before the rest, the order of procedure will be decided among them by lot.
Purposes for which the personal attendance of an applicant in the justice-chamber, while making his application, may be necessary or useful, with reference to his own desires, are—
1. Furnishing appropriate evidence as to facts, collative and ablative; say Appropriate-self-serving-evidence-furnishing.
2. Furnishing indicative evidence as to the above; say Indicative-evidence-furnishing.
3. Furnishing, at the instance of the judge, any such evidence as (though the tendency of it may be contrary to his desires) may be necessary to the preserving of other persons from vexation and expense, contrary to the ends of justice; say Furnishing self-disserving or confessional evidence.
4. Furnishing security against undue vexation imposable upon others, on the occasion of the application; say Responsibility-affording.
5. Furnishing means of co-enduring communication with him, for the purpose of the application; say Accessibility-securing, or means-of-communication-affording.
6. Receiving from the judge, warning against the damage liable to be sustained from sinister interest of proxies, professional or even gratuitous; say Tutelary-advice-receiving.
7. Receiving at the best hand, i. e. in an immediate way, the advice of the judge as to proceeding or not proceeding in the application; as to the mode best adapted to the ends of justice; say Ulterior-course-concerting or settling.
As to Responsibility-affording:—Evils against which, on the occasion of a judiciary application, appropriate security may be necessary, are—
1. Waste of judicatory’s time; thence delay, or even denial of justice, to those who otherwise would at so much the earlier time, have been litigants.
2. Undue vexation and expense, to persons whose interest, according to the service demanded by the application, may come to be detrimented by ulterior proceedings. But, in so far as the applicant, though he be not the principal, can give as good security against these evils as the principal could, his attendance may be as useful as the principal’s.
As to Accessibility-securing, or means-of-communication-affording:—The uses of securing adequately lasting means of certain communication with the applicant, are two, viz.—
1. Securing to him, if granted, the service demanded.
2. Securing the public and individuals against the evils just mentioned.
Hence the persons, communication with whom should be secured, are—1. The principal at any rate; 2. The applicant, if a person other than the principal. But in so far as this security can be as effectually afforded by the applicant, as by the principal, the principal’s attendance is needless for this purpose.
As to Tutelary-advice-receiving:—As to this purpose, in so far as the need has place, the demand for the principal’s attendance is strongest. True it is, that if the need exists, it may be made visible to him, by the record of what passed between his proxy and the judge, and that for the purpose of such advice, the judge may, if he sees reason, command the principal’s attendance. But, on the matter of the record, he may be more or less ill-qualified to form a judgment for this purpose. And there may be reason for his receiving the judge’s advice, though by indolence, or some other motive, the judge may be prevented from commanding his attendance for that purpose.
As to Ulterior-course-settling:—If the case be such, that the principal has need of the judge’s tutelary advice as above, the ulterior course, which it will be most fit for the procedure to receive, may depend upon the nature of such tutelary advice.
These considerations will serve as a memento to the judge, to be on the watch, for the need which may have place in relation to this tutelary advice.
As to Confessorial-evidence-furnishing:—For the prevention of evils to other interessees, true it is that the attendance of the principal may, after the attendance of the proxy, require to be exacted. But supposing it exacted time enough for such preventive purpose, the exaction of it, in the first instance, is to this purpose needless.
On the occasion of a judicial application, applicants require to be distinguished, in the first place, into principals and proxies.
A principal applicant, is he by whom the application is made on his own account. A proxy applicant, is he whose application is made on an account of another, or others. In respect of a joint-interest, the same person may be applicant on his own account, and likewise on account of his co-interessees.
In relation to the benefit, or the burthen which is the object of the application, the applicant may be possessed, or not, of special interest, or any peculiar and self-regarding interest, in the subject-matter of the application. A person, the purpose of whose application is the procuring some benefit for, or the averting some burthen from, an individual or a community, with whom he is not connected by any special tie of self-regarding interest, is an applicant not possessed of any special interest in the subject-matter of his application.
A special interessee, may be so either on a purely self-account, or on a purely trust-account, or on a compound-account.
In so far as a person is interested on behalf of another, to whose interest he stands bound to give special support, he is styled a trustee on behalf of such other, or others; and the interest he thus possesses is styled a fiduciary interest; and the law by which he is so bound, is styled a trust-creating law: the person on whose account—for whose sake, the trust is created, is styled a principal in the trust, or say a benefitendary.*
When a trust is created by law, as above, it may be either with or without the instrumentality of a person or persons operating to that purpose: when it is with such instrumentality, the person or persons so acting may be styled trustee, or trustees. In this case, there are three parties connected and jointly interested:—to wit, 1. The benefitendary; 2. The trustee; 3. The trustor or trustors; or say, the trust-maker or trust-makers.
In some cases, the trustor and trustee may be the same person: in these cases, the trustee is a self-constituted trustee; or say, an uncommissioned trustee.
When it is by the benefitendary that, under the sanction of the law, the trust is created, and a person or persons constituted and created trustee or trustees, it is by contract between such benefitendary on the one part, and the trustee or trustees on the other.
Examples of trusts and trustees, created by act of law, without the instrumentality of any person or persons, are as follow:—
1. A husband, acting and applying on account of his wife.
2. A father, in quality of natural, that is to say, law-located guardian to his son or daughter under age.
3. A mother, in default of her husband, in quality of natural, that is to say, law-located guardian to her son or daughter under age.
4. A guardian, in the case where, without need of his own instrumentality, he is law-located as such, in relation to a person under age.
5. A guardian, in the case where, without need of his own instrumentality, a person is constituted such, with relation to a person labouring under mental derangement.
Examples of trusts and trustees, created such by act of law, by and with the instrumentality of the trust-maker, but without the instrumentality of the beneficiendaries, are as follow:—
1. A testamentarily-located post-obituary administrator: the beneficiendaries in this case, with or without the administrator himself, are the co-interessees, as above, in the mass of property left vacant by the death.
2. The case where a person, desirous of conferring a benefit on a certain person or persons, invests a mass of property in the hands of a trustee or trustees, in trust, to be disposed of in a certain way mentioned, for the benefit of a person or persons in the character of a beneficiendary, or set of beneficiendaries.
Examples of trusts and trustees, created under the sanction of the law, by the trustor and trustors, and the beneficiendary and beneficiendaries, in the way of contract, are—
1. The case of a general agent and his principal; a general agent, to wit, or trustee, to whom the principal, as beneficiendary, entrusts the management of his pecuniary, and other interests in general. To this head belongs the case of a steward receiving the whole income of his principal.
2. The case of a special agent, acting in the capacity of a steward of a particular landed estate.
3. The case of the manager of a manufacturing concern.
4. The case of an agent or factor, acting in the sale of a particular article, or set of articles, whether in the way of ordinary sale, or in the way of auction.
5. The case of an agent or factor, acting as such, in behalf of a principal, habitually or temporarily resident in a foreign country.
In the Constitutional Code throughout, but more particularly in those chapters which concern the business of the administrator’s department, may be seen mention made of divers functions, as exercisable by public functionaries, for the benefit of the public. In the instance of many, if not all of them, functions of the same nature, and thereby susceptible of the same denomination, are exercisable, and everywhere habitually exercised, by individuals in the character of trustees, on behalf of individuals, and bodies of men, in the character of beneficiendaries.
Examples of applicant co-interessees are—
Where a partner attends on account of himself, and his co-partner, in respect of the partnership estates.
A person attending on account of the mass of property belonging to an individual, or a partnership, in a state of insolvency.
A person attending on behalf of a body-corporate associated by law, and being or not being a member thereof.
A person attending as a representative, or member of a body of persons associated either promiscuously or on a special occasion, and for a special purpose, but not incorporated by any legal instrument.
A person attending, in a case of alleged and supposed necessity, in the character of a self-constituted trustee, for any of the classes of principals above mentioned, on the ground that, by negligence or sinister design, or by reason of a blameless want of appropriate information on the part of the proper trustee or trustees, the interest of the principal would, but for such application, be exposed to suffer irreparable damage.
A person who on any account makes judicial application to a judicatory, becomes, by so doing, or assumes himself to be, an interessee.
Interessee is a word bearing reference to some subject-matter. By an interessee, understand a person possessing a legal interest (an interest sanctioned, or considered as being about to be sanctioned, by law,) in the way of profit or loss in some assignable subject-matter.
Such interest a man may possess either on his own account, or on that of another: if, and so far as it is, on his own account, it is a self-account interest; if, and so far as it is, on account of another person or persons, it is a trust-account.
A person who, with reference to the same subject-matter, is a self-account interessee and a trust-account interessee, may be styled a joint-account trustee.
An applicant, applying on behalf of a number of self-account co-interesses, is with relation to them a representative: he is on that occasion their representative; if he is one of their number, a joint-account representative; if he is not of their number, a trustee-representative.
Of an interessee’s becoming such, the cause is, either his own agency alone, or the agency of some other person or persons alone, or his own agency in conjunction with that of some other person or persons. In the first case, he is a purely self-constituted interessee; in the second case, a located interessee; in the third case, a consenting located trustee.
A located trustee, is located either by the law, that is to say, by the legislature alone, with or without his consent, or by the law and some other person or persons jointly. In the first case, there is no trustor; in the second, there is a trustor, or set of trustors.
Of cases in which a trustee is located by the law alone, examples are as follow:—
A father, in respect of the power exercised by him in relation to, and over his children.
A husband, in respect of any such power as is given him, by law, to he exercised in relation to, and over his wife.
A guardian, in respect of the power over the person and property of his or her ward, in so far as established by law, without need of concurrence on the part of any person.
A trustee may be such, either without power or with power over persons or things.
A self-constituted trustee, as above, is a trustee without legal power. Without commission from any beneficiendary, or any located trustee, or the law,—undertaking the performance of a certain service, for the benefit of the beneficiendary, he constitutes himself, in so far, a servant of such beneficiendary: and for damage done to any person, on the occasion of such service, or supposed or pretended service, he is compensationally, and in case of sinister design, and evil consciousness or temerity, punitionally responsible.
Of joint-account representative applicants, examples are as follow:—
1. A person applying as member of a private partnership.
2. A person applying as member of a jointstock company.
3. A person applying as one of two or more trustees, located as such, with power over a mass of property, placed at their disposal, for their own joint benefit.
Wheresoever a trustee is located as such, a trust is said to be established.
By a trust, understand a power, burthened with obligation—with the obligation of giving to the power such exercise, as in some particular way to render it serviceable to some person or persons, determinate or indeterminate, in any number, up to that of all the inhabitants of the political state.
Parties to every trust are—first, a person or persons by whom the service is intended to be rendered; second, a beneficiendary or beneficiendaries, to whom the service is intended to be rendered.
If it were by a single individual, that the trustee or trustees was or were located, he, in relation to them, is locator—sole locator; if divers individuals, each of them is a joint locator.
A trustor, by whom a trust is established by the location of a certain trustee or certain trustees, with power for continuing the trust, and preventing its extinction, by successive acts of location, may be styled the founder of that same trust.
Application how commenced.
At the proper station, the applicant sits or stands in silence, until addressed by the judge.
Judge to applicant:—What is it you have to tell us of?—
1. A service which you claim, for yourself or any one, at the hands of any one?
2. A wrong for which you claim, for yourself or any one, satisfaction at the charge of any one?
3. A public offence, as to which you are ready to give us information?
4. Or anything, and what else?
After utterance of the introductive question, ending with the words tell us of, the judge makes a short pause, to give time to the applicant to say, Prepared, sir, or, I am prepared—if such be the case.
By the word prepared, the judge understands that the applicant is sufficiently prepared to state the nature of his application, under one or other of the above heads, without need of assistance from the judge.
If no such intimation is conveyed, then only it is that the judge proceeds to enumerate the several above-mentioned purposes, and modes of contentious application, that the applicant may settle with himself, and declare to which of them the matter he has to state belongs.
If, for want of appropriate aptitude, the applicant is unable to give, in the first instance, an intelligible answer to the above questions, in such manner as to refer the case to any one of the general heads already brought to view, the judge will continue hearing and interrogating him, till the import of his application is sufficiently ascertained.
For giving facility to these examinations, as well as for other purposes, a set of appropriate tables will have been provided, and kept hung up in the justice-chamber, in such manner as to be legible to the greatest possible number of persons at once; as also the like in smaller form, in such sort that one copy may be held in hand by the applicant, and another by the judge.
Examples of these tables are as follows:—
Table 1. Table of services exigible, or rights obtainable, containing a list of the several sorts of effective services, which by the corresponding judicial services performed by the judge, one person may claim at the hands of another, without the imputation of wrong from the not having rendered them; adding to each service the several efficient causes of the right or title to receive it.
Table 2. Table of wrongs, private and publico-private, with the correspondent remedies; consisting in modes of satisfaction, with or without modes of punishment added or substituted to satisfaction, as the case may be.
Table 3. Table of purely public wrongs, with the correspondent remedies.
For these several tables, heads and matter may be seen in the Introduction to the Principles of Morals and Legislation, and in the Traitè de Législation Civile et Pénale.*
If the applicant can read, the judge causes such of these tables as may serve for his assistance to be put into his hands, having in his own hand or view, copies of the same: if the applicant cannot read, the copy which the judge has, assists him in putting questions or giving instructions to the applicant, as the case may require.
If the application be contentious, the conversation will proceed as per Chapter XII. Initiatory Hearing.
If the application be uncontentious, the applicant will name it as above by its appropriate generic denomination.
To save time, these denominations will not, like the others, be recited by the judge. They are of comparatively rare occurrence; nor will they need, any of them, to be made by any person who is not able to explain himself sufficiently on the subject; to wit, either by perusal of the code, or by previous conference with some friend, from whom sufficient instruction and direction will have been obtained.
In any case, it may be either on the applicant’s own account, or on account of some other person, that the application is made. But how the matter stands in this respect, the judge will without difficulty understand from the applicant’s statement. Interrogations to that effect need not therefore be included in the judge’s address as above.
For the several cases in which one person may make application on behalf of another, see Chapter XII. Initiatory Hearing.
At the commencement of the conversation, or at any time in the course of it, if it be clear that the applicant can read, the judge with his hand may point to, and if near enough, touch the spot on which the legend containing the warning against falsehood is displayed: as to which, see Chapter Judiciary Collectively (Ch. XII.) in the Constitutional Code.
In the case of an information, he will take the same course as above for ascertaining the nature of the wrong complained of, or the service to which the party in question has a right.
If it be the case of a wrong, as it commonly will be, and most commonly that of a crime, he will collect from the informant whether he be or be not desirous or content to be a pursuer, alone or in conjunction with some other individual, or the government advocate, or both; which done, he will determine as to the complying or not complying with the desire.
In this case more particularly, a question table to come under consideration will be, whether the fact spoken to in the information be the criminal act itself, or only a fact capable of operating in the character of circumstantial evidence; and in both cases, whether according to his account the informant was in relation to the fact in question, himself a percipient witness, or whether all he has to speak to is his having reason to believe that another person, known or unknown to him, may probably have been, in relation to it, a percipient witness. In this latter case comes the demand for investigation, as explained in another chapter.
As already observed, there is no sort of case in which there may not be need of such investigatory process, nor any in which the service rendered to parties by the employment of it may not outweigh the vexation and expense. But in England, it not being employed but in cases regarded as belonging to the highest classes of crimes, or in judicatories into which the eye of the public scarcely penetrates, those higher classes of cases are the only ones in which the need of it can be expected to present itself to the generality of readers.
As to the person, if any, to whom the address shall be made by the judge before any is made to the defendant,—here again is a point in relation to which an option will be to be made by the judge.
So likewise in regard to the three several modes of address above mentioned.
On this occasion, too, will come the consideration whether to consign the function of pursuer to the government advocate; and no sooner does reason sufficient for this operation present itself, than the judge will perform it accordingly, that his opinion and decision respecting the points above mentioned may be heard.
In regard to purposes, the leading principle seems to be, that to all purposes that can with propriety be termed judicial, the faculty ought to be open to exercise; and to render the purpose judicial, it is not necessary that on the occasion in question a suit should actually have been instituted. It is sufficient, if either a probability having place that a suit of a certain description will be instituted, it will in probability be conducive to the ends of justice that the service aimed at by the application should be granted; or that if the service be granted, a suit conducive to the ends of justice may in probability be instituted, and the ends of justice thereby attained, in a case in which, but for this same service, a suit might otherwise not have been instituted, and thereby the ends of justice might have failed of being attained.
Cases there are, in which, though strictly speaking the business is not of a judicial nature, inasmuch as no contestation hath as yet place, and though at the hands of the judge no judicial termination of a suit may come to or be intended to be called for,—yet among the powers necessary to be exercised for the accomplishment of this desirable purpose, are some of those which are indisputably attached to the office of judges. Of this sort is the evidence-eliciting power and function.
On the present occasion will be added certain powers, the demand for the exercise of which is created by some accident, or other event, by which it cannot without previous inquiry, that is to say, elicitation of evidence, be ascertained whether or not there may not be litiscontestation, and in consequence of it, demand for the exercise of powers exclusively attached to the office of judge. Had the state of facts been previously known, the powers necessary to the production of the desirable effect—for instance, the staying or reparation of calamity in this or that shape—might have been exercised by other efficient hands; but no such hands being in readiness, and those of the judge being in readiness, it is by them that the powers in question are exerciseable, with more effect than by any other, and by them that it is accordingly fit they should be exercised.
The purposes for which an individual may make application to a judge, as such, are either—1. Ordinary; 2. Extraordinary. The ordinary are,—1. Contentious; 2. Simply informative. The extraordinary are—1. Consultative; 2. Damage preventive; 3. Prospective-evidence-securing.
Purpose—contentious. By the contentious purpose, understand the purpose to institute a suit at law. When from the declaration made by the applicant, it appears that this is his purpose, and when by the judge his prosecution of this purpose is allowed, the suit is declared to be instituted, and the hearing thus going on is declared to be the initiatory hearing in relation to this same suit. The applicant in this case is a pursuer.
Purpose—simply informative. In contemplation of a certain criminal offence or wrong, from which he or some other individual, or the public at large, has suffered damage, or as he supposes was in danger of receiving damage—an applicant who is desirous that pursuit on the ground thereof be made by some one else (for example, by the constituted authorities,) but is not desirous to act for himself as pursuer, desires to be admitted to deliver information thereto relative,—such applicant is an informant.
If, in contemplation of an eventual suit purely non-penal, information through regard to the ends of justice or to the welfare of a party supposed to be interested, is given by an individual who has not himself any special interest in such suit,—this application is that of a non-commissioned proxy.
In English practice, on both these grounds, applications have place every day in certain criminal cases. The cases are mostly those in which the punishment attributed to the offence rises to the height of what is so unintelligibly called felony. But if in a judicial case of this sort, the receipt of information is capable of being of any use, so is it in every other. Yet in no other case is there a judge who will receive it. The sort of judge by whom, in this case, the information is received, is not the judge under whom the suit will receive its termination, but the sort of judge by whom a sort of preliminary, incomplete, and never-conclusive inquiry is carried on; to wit, the justice of the peace.
Purpose—consultative. By the consultative purpose, understand the purpose which is in view, when, being in doubt concerning the interpretation that may eventually be put by the judge on a certain portion of the body of the law, the application has for its object the calling into exercise the judge’s pre-interpretative function. The applicant in this case is a consultant.
The motive for the consultation is—either for his own sake or that of some person in whose welfare he takes an interest, where a certain course in which the law has, as he supposes, a bearing—an anxiety to know in what manner it would by the judge be eventually regarded as bearing.
Of the cases in which a demand for an application for this purpose may have place, examples are as follows:—1. Conveyance: the applicant desirous of making, on certain conditions, conveyance of a certain right, of or relating to a certain mass of property, but not sufficiently assured of the validity or the impunibility of such conveyance. 2. Contract: so in regard to a contract to a certain effect. 3. Prohibited acts: so in regard to a certain act at large, which he is desirous of performing, but is not sufficiently assured of its not being regarded as prohibited, and thence punishable.
Purpose—damage-preventive. According to the source of the damage, this purpose may be—1. Calamity—damage-preventive; 2. Delinquency—damage-preventive; 3. Absenteeship—damage-preventive.
For examples of the modification, of which calamity is susceptible, see Constitutional Code, Chapter XI. § 5, Preventive Service Minister. So likewise, for damages through delinquency. Under calamity include casualty; the difference being only as between greater and less; determinate separative line, there is none.
For the prevention of calamity—prevention of the commencement or the continuance, as the case may be,—application may also be made to a preventive-service functionary, as per Const. Code, or to the local headman.
If for the rendering of the service needed, powers such as belong to the judge, and not to those two other functionaries respectively, are necessary, then is it to the judge alone that application will be to be made; and if made to either of those other functionaries, the applicant will by them be referred to the judge.
By the absenteeship-damage, understand that which is liable to have place for want of proprietary care; the proprietor, known or unknown, distant from the spot, and no other person at hand, with sufficient authority and inclination to prevent the damage. Examples are—
1. Agricultural produce perishing for want of being gathered in.
2. Agricultural live-stock perishing for want of sustenance.
3. Perishable stock in trade perishing for want of appropriate care or sale.
For this purpose, application may also be made to the local headman.
Purpose—prospective-evidence securing. The purpose here is the saving a right, or a means of repressing a wrong from being lost for want of appropriate and judicially receivable evidence. Personal evidence is liable to be lost by death, physical inability, or local transfer of the person from whom it should have come; written and other real evidence by destruction, mislaying, or local transfer. If after commencement of a suit grounded on it, evidence should be made forthcoming, so should it before: reason in both cases the same. By securing it before the suit a suit may, in many cases, be prevented. In non-penal cases, the need is more apt than in penal cases, to have place: but as to the supply, if in any case conducive to the ends of justice, so it is in every other.
The person from whom the evidence is needed, may be the applicant, or any other person. In the first case, all that is demanded is, that the evidence which the applicant is ready to deliver, either be received and recorded: added or substituted, in the other case, is the demand that, as in an already existing suit, an appropriate order be delivered, ordering by whom, when, where, and how, it is to be delivered. The applicant in the first case is a prospective evidence offerer; in the other, a prospective evidence demandant.
In both cases, precautionary arrangements are needed for the prevention of abuse.
Under the English system, application for this purpose is not altogether without example. But by the example, such as it is, so far from being removed, the imputation of improvidence and inaptitude is but established and exposed. Co-extensive with the whole field of legislation and judicature is as above, the need; under the English system, no more than a corner of that same field is supplied.
As to the means of obtainment, so far from being obtainable without a suit, it is not obtainable without a suit of the most expensive kind,—a suit in equity, instituted for that sole purpose, unless already instituted for some other. Field of supply, a portion of the field of equity jurisdiction. What the whole is, belongs to the category of things unknown and unknowable: so likewise what this portion is; on each occasion, the whole and the part are whatever the judge pleases. Within that part, does your case entitle you to the service? Ere you can form the slightest guess, you have an ocean of distinctions to wade through—distinctions without reason and without end. Ask the chancellor, and when you have distributed a few hundreds, or a few thousands of pounds among him and his partners, creatures, and dependants,—at the end of a course of years, he will either tell you, or not tell you; and if he tells you, he will either grant you the supply or refuse it, making proclamation all the while of the profundity of his reflection, the acuteness of his discernment, and the anxiety of his fostering care. When thus granted in words, you will take proceedings for obtaining it in effect, and before they are concluded, be not surprised, if the evidence has perished.
No otherwise than orally delivered, and in the justice-chamber, is any judiciary application receivable.
But by any applicant attending as such, any letter, to whomsoever addressed, whether to himself or to the judge, or to any other person—may be read or presented for reading: the letter being open, and containing matter relevant to his application; and the applicant being responsible, in respect of the contents and the purposes for which it is exhibited.
A person by whom an application is made, and by whom accordingly an appropriate discourse is addressed to the judge, may, for occasional assistance and support, bring with him any person not specially inhibited. But for special reason assigned by the judge, any such assistant or supporter may be ordered and made to withdraw.
Concerning any matter, in relation to which judicial application may be made to a judge, no application can lawfully be made to him elsewhere than in open judicatory. To make any application elsewhere is, in the party making it—in attempt or preparation—an act of corruptingness, and as such, punishable; to receive it without disclosure, is in a like manner, on the part of the judge, an act of corruptedness. As to this, see Constitutional Code, Chapter XII. § 15. Secret Intercourse obviated: and also for the cases in which it may be requisite that the discourse should be secret, and for the mode in which such secresy shall be kept.
Question: As a security for testimonial veracity, why is not the ceremony called taking an oath, here employed?—Answer: Because it is needless and inefficacious to every good purpose: to evil purposes, in prodigious extent, effective.
It is needless. The responsibility here proposed—responsibility satisfactional, punitional, and upon occasion, dislocational—responsibility to the legal sanction, responsibility to the popular or moral sanction, to the judicial and public-opinion tribunals—is abundantly sufficient.
It is inefficacious. Utterly devoid of efficacy it is proved to be, by universal and continually repeated experience. Under the English system, its invalidity, in respect of moral obligation, is abundantly recognised by the practice of the constituted authorities.
1. In the situation of jurymen in general. In no instance, when any difference of opinion has place, can any verdict be given without a breach of the promise thus pretended to be sanctioned. The verdict being delivered as unanimous, jurors in any number, from one to eleven, must have done that which they have all of them sworn not to do,—uttered a declared opinion contrary to the real one.
Instances are happening, and always have been happening, in which they unanimously concur in declaring as true that which all know to be untrue, and when out of the box scruple not to declare their believing to be untrue. Declaring a quantity of money stolen to be under a certain sum, when in fact what was stolen, if indeed it was stolen, could not have been less than several times that sum; declaring a defendant not guilty, when, according to ample, uncontradicted, and unquestioned evidence, he was guilty: in both cases, for the known and undissembled purpose of saving the defendant from the punishment appointed by law.
Under the eyes of the highest judges is always done what is thus done: judges never disapproving, oftentimes approving, commending, or even recommending. Not a judge is there of those now in office, to whom it is not perfectly known that all this is correctly true. When praise is bestowed by them, humanity is the word by which it is bestowed. Humanity displayed! by which laws are openly violated, and perjury openly committed!
2. In the case of coroners and coroners’ juries,—as often as suicide is declared the result of insanity, when in fact it is the result of calculation—a calculation by which it is determined, that in what remains of life, if preserved, the quantity of pain will outweigh that of pleasure. The cases in which the operation is declared not to be the result of insanity are extremely rare. And then what are they? Those generally in which a man has left neither property nor friends, by whom his property, if any, at his decease could be shared. When the confidant of the Holy Alliance, so truly called holy (for what wickedness is equal to that called holiness?) put an end to his life, what he did was, as everybody knows, deliberate. If suicide is an act of insanity, so is voluntarily entering into a military service—so is choosing what appears the least of any two evils.
3. In the case of deodands imposed by coroners’ inquests. When, by a loaded coach or waggon running over him, a man is killed, declaration must be made by them upon oath what the instrument was by which the casualty was produced. By the whole vehicle, or no part of it, says common sense. No, says jury and directing judge—not by the whole vehicle, but by one wheel and no more: by no other part was any contribution made towards the production of the effect. Here then, is perjury—and to what use? To save the owner of the carriage from the loss of it. For when, by the unruliness of his cattle, the husbandman has lost a servant or a son,—to enrich him for his loss, all-wise judges have in their wisdom concurred in giving it with its contents to the king. Wisdom, with one hand, enforces the law; the same wisdom, with the other hand, defeats it.
Now, as to belief, how stands the matter with these men? Is it that they do not believe that any such person as God is in existence? Is it that, believing such a person to exist, they do not believe that the power they thus take upon them to exercise over him will have its intended effect—they the judges to decree at pleasure, he the sheriff to execute?
They who into the mouths of the elect are so constantly occupied in forcing perjury, are they not suborners of it? But the thing to be proved was, that, whatever be the restraint in any case put upon the motives by which perjury is prompted,—in the production of this restraint no part is ever taken by the ceremony of the oath. And the proof is—what? Where it has not for its accompaniment exposure to punishment in a visible shape, it is set at naught by everybody; but by none more universally than by those to whom, in profession, it is the object of such prostrate reverence.
The all-embracing jury-trial perjury could no otherwise be got rid of, than by giving to the majority, as in other cases, the power of the whole: a measure, the effects of which could not without considerable reflection be anticipated.
But the madness-imputing perjury, and the valuation perjury might be got rid of, at no higher price than the mortification of suffering the property to go or remain with the right owner: and among the whole race of heroes, whom, in the character of ennobled chancellors and judges, the country has for so many ages been adorned with, not one has ever been found hero enough to take upon himself this same mortifying task—by whom the benefit of clearing the country of this perjury has been thought worth the trouble.
When, by the whole elect of the country, the utter inefficacy of the ceremony has been recognised, it may seem little better than a superfluity to speak of the indirect recognition expressed by every House of Commons that ever sat. If it were thought of any importance that it should be employed in inquiries, in the result of which nothing more than the welfare of A and B is at stake,—could it ever have been left unemployed in inquiries, on the result of which so many millions are continually at stake? Could the Commons have quietly left the Lords in the exclusive possession of it? Could the Lords, temporal and spiritual, with common decency have kept to themselves the exclusive possession of it, if, for any such purpose, it had, in the opinion of either, been worth a straw?
So much for the uselessness and inefficaciousness of it. Now as to the mischievousness of it.
The prime article in the list of the evils produced by it, is the mendacity-licence, of which it has been, and continues to be, the instrument. To make men believe that it is by the imaginary eternal, and not by the real and temporal punishment, that the mendacity-restraining effect is produced (the House of Commons case excepted) on no occasion, for the repression of mendacity, is any real punishment employed, but when this ideal source of punishment is tacked on to it. Where no oath, on pretence of securing veracity, is employed, falsehood, though the evil consequences be exactly the same, receives the fullest and most effectual licence.
In the field of common law, with the fullest allowance from their partners in depredation, the judges—the hireling lawyers of all classes, on both sides, riot and disport themselves, while fattening upon lies. Beyond a certain extent, the quantity of these lies is optional; but up to that extent, it has, by those who profit by it, been made compulsory and unavoidable.
Before applicant’s statement—responsibility how secured.
Antecedently to the reception of the applicant’s statement, the judge takes the requisite measures for securing the means of communicating with him after his departure from the judicatory, for whatsover purpose such communication may be requisite.
Needful, on two accounts, is this precautionary measure:—
1. On the account of the applicant himself, for the purpose of giving effect to his application, in the event of its proving well grounded.
2. On the account of the defendant, in the event of its proving ungrounded, with a view to compensation.
3. On the account of the public, in the event of its having been made wantonly, having for its object or effect the exclusion of other applicants from the benefit of justice, by wasteful employment of the judge’s time.
First, then, let it be not a piece of information that the applicant comes to give, but a complaint, or a demand, that he comes to make.
In case of a complaint, he will set himself to inquire what the wrong is, which is the subject of it; and who the person is, or the persons are, who have been concerned, and in what ways, in the doing it: whether known to the applicant or unknown; if known, where the person’s abode is, or what other more effectual means there may be of communicating with him for the purposes of the suit.
For the purpose of ascertaining what the wrong is, the judge will have before him the table of offences. It will be given in all its ramifications in the penal code, to which the proposed code here delineated has reference.
This table, with divers others, is constantly within reach of the judge, and within view of all the other actors in the judicial theatre. If the applicant can read, a look at it may enable him to save the time employed by the judge in the above-mentioned address. Frequently, while waiting in the suitors’ gallery for his turn, a communication with his neighbours in the gallery, if carried on in whispers, at the intervals when the discourse carried on for the purpose of the suit are at a pause, may afford him such instruction as may more or less abridge the labours of the judge.
If the application be a complaint, the definition of the wrong will have informed the judge of the criminative circumstances, the concurrence of which is necessary to the existence of it. As need may occur, he will either mention these to the applicant, or wait to collect them from the applicant’s statement, as it comes forth. And before he determines to call for the appearance of the defendant, he will, in like manner, satisfy himself that, according to the applicant’s showing, no circumstances of justification or of exemption, relative to the species of offence in question, have had place.
If the application be, as above, a demand, the judge will of course have in his mind the respective natures of the several services capable of being demanded, without imputation of wrong, on the part of those at whose charge they are demanded: together with a list of all the several efficient causes of title, with respect to service in all those several shapes. This being confined to another such Table as above, will at the same time afford to the applicant such information as the state of his mind enables him to imbibe.
In the same Table in which are exhibited the several incidents which, with reference to the sort of service in question, have a collative effect, will also be exhibited, in conjunction with them, the several circumstances which, with reference to that same object, may have an ablative effect.
The same care which has been employed in the ascertaining, so far as depends upon the applicant’s showing, the existence of some one article in the list of collative circumstances, will be employed in ascertaining the non-existence of all the several ablative circumstances.
In the course of the inquiry, he will ascertain whether there be any other persons, who, not being present in the character of co-applicants, are united in interest with the applicant.
So also in regard to witnesses.
So likewise as to defendants, and persons regarded as capable of being witnesses, or liable to be called as witnesses, on the defendant’s side.
It will then be for the determination of the judge, to which description of persons application should first be made—whether to the applicant’s partners in interest, to the applicant’s expected witnesses, or to the defendant or defendants. And in such his determination, he will of course be governed by the joint consideration of delay, vexation, and expense; regard being had to the importance of the case on the one hand, and the probable quantity of unavoidable vexation and expense on the other hand.
His next consideration will be, in which of the three possible modes application shall be made to the several descriptions of persons above mentioned—whether in the way of accersition, prehension, or epistolary mandate and interrogation.
Self-notificative information, elicited how.
When the purpose of the application has been established, or, if he sees reason, earlier, the judge proceeds to establish the means of eventual communication with the applicant, according to the nature of the purpose.
Judge to Applicant:—Produce your applicant’s address paper, ready filled up, or make answer to such questions as I shall have to put to you, for the purpose of filling up this which I have in my hand.
If, by the applicant, a paper ready filled up is produced accordingly, the judge, either by the word allowed, with the addition of his signature, signifies his satisfaction with it as it stands, or proceeds, and continues to put appropriate questions, until it receives his allowance, as above.
If no such ready-filled up paper be produced, the judge, by appropriate questions, proceeds to elicit answers, until, under the several heads, such information as to him appears satisfactory has been obtained—the registrar, under the direction of the judge, setting down the answers in words or substance, but not any of the questions—such alone excepted, if any, as he shall have been required to set down, either by the applicant or by the judge.
At this stage, the judge may content himself with the information expressed in such answers as the applicant is content to give. By the purpose of the application, and the nature of the matter stated in pursuance of it, he will be determined whether to elicit information under the several other heads.
In respect of name, all that at this stage need be elicited is that which the applicant is at the time known by, and answers to: so in regard to condition in life, and abode. Under no one of these heads will he be required to declare the real, in contradistinction to the apparent state of the case, unless specially required; nor will he be thereto specially required without special cause.
If the applicant’s purpose be either consultative or evidence-securing, seldom can it happen that on his part any desire of concealing either name, occupation, or habitation, should have place: nor yet, if his purpose be calamity-damage-preventive, or delinquency-damage-preventive, can it naturally have place. Not so if the purpose be either contentious or informative. For in the case of a person by whom, on this or that point, and in particular in the point of name or condition in life, the law has been transgressed, need of the protection of the law for himself, together with adequate motives for furnishing information of acts of transgression committed by others, may not be the less likely to have place.
Applicant’s accessibility secured, how.
In regard to habitation, if so it is that the applicant has not any such settled habitation as determined in and by the Constitutional Code, in the chapter containing the Election Code (viz. Ch. VI.) no entry, without instruction from the judge, will he perhaps be able to dictate.
In this case, either he has a habitation in the territory of some other judicatory, or he has not any in the territory of the state. If he has not any in the territory of the state, either he has not any at all anywhere, or he has a habitation in the territory of some foreign state. Whether in the territory of a foreign state he has or has not any such habitation,—in the territory of the judicatory in which he is making his application, either he has a temporary residence, or he is merely passing through it in the course of a journey, in the condition of a traveller. In which of all these several predicaments the applicant stands, the judge will, by appropriate inquiry, learn, and accordingly cause entry to be made.
For the purpose of maintaining appropriate intercourse with the applicant, it will not be necessary that his habitation (if in the territory of the judicatory, or elsewhere, he has any) should be known; it may be maintained by missives deposited at the habitation of any other person, or at any other place, at which, by his own hands, or those of any other persons, he declares himself sure of receiving it.
In general, only in the case where consequential proceedings are in contemplation to be carried on, will there be any need of establishing any means of intercourse. No such need will have place if the application be simply dismissed, unless, on the ground of delinquency, in some determinate shape, or for security to other persons against damage liable to be produced by the application, it should be deemed necessary to place him in a state of forthcomingness.
The case where the purpose of the application is contentious, and in consequence a suit will naturally have place, being that in which the importance of accessibility is at the maximum, as also the difficulty of securing it,—what belongs to this head will be found in its proper place.
Causes for dismissal.
Causes or grounds for dismissal, may be any one of the following:—
1. To warrant the judge, in rendering the judicial service necessary to the performance of the service demanded, no adequate portion of law indicated by the pursuer, or existing, to the knowledge of the judge. Say for shortness—Law not proved.
2. No fact alleged by which, supposing the existence of it proved, the title or right of the demandant to receive the service demanded would be established. Say for shortness—Fact not proved.
3. The evil, if any, that has place or would have place, supposing the effectual service not rendered, not sufficiently great to outweigh the evil, which, in the shape of vexation and expense, would be produced, by rendering it.
4. The applicant not able of himself to furnish adequate satisfaction, in any shape or shapes, to the proposed defendant.
5. The evil, if any, not sufficiently great to warrant the exacting, at the hands of the demandant, the self-incarcerative security.
6. No person indicated by the demandant, as consenting eventually to subject himself to the burthen of satisfaction to an amount sufficient to outweigh the evil of vexation and expense, as above.
Proceedings, when secret.
If, in the apprehension of the applicant, the case be of the number of those in which, for some specific purpose, secresy, in reference to the other actors on the judicial theatre should for the time be preserved, he hands over to the judge a folded ticket, in which the demand for secresy, together with the ground of it is expressed: whereupon the judge will as he sees best, either continue the hearing in the public chamber, or transfer it immediately to the private chamber, taking with him the applicant and the officiating registrar.
Grounds for such secresy are as follows:—
1. On the part of the proposed defendant, danger of non-forthcomingness, if the application be known to him.
2. So on the part of a desired witness.
3. So, on the part of a proposed defendant,—abstraction of things moveable, to avoid eventual prehension, whether for means of probation, or for means of execution.
4. Necessity or probability of disclosures productive of damage to reputation in respect of sexual intercourse.
5. Necessity or probability of discourse offensive to modesty.
6. Necessity or probability of the revelation of facts, the disclosure of which might be prejudicial to the community in respect of its foreign relations.
So, if, in the course of the conversation, he sees reason, the judge will transfer the hearing from the public to the private chamber, having care to retransfer it to the public chamber, so soon as the need of secresy has no longer place; and so toties quoties.
If, by a party on either side, demand be made for a recapitulatory inquiry, secresy or publicity may again be demanded, by that same or any other party, on either side; thereupon the judge will do as he sees best, taking care lest, intentionally or unintentionally, secresy be broken in the course of the demand.
If, in the case of secresy, on the ground of damage to reputation, the injunction of the judge be broken, the offender will be responsible—satisfactorily and punitionally responsible—as for malice or temerity, as the case may be: and the truth of the imputation, will not be received either in justification or extenuation.
Deceptive fallaciousness—its modes.
Falsity essential, falsity in circumstances, falsity in degree, falsity irrelevant. The distinctions expressed by these appellations will be noted by the judge.
By falsity essential, understand the case in which, supposing the assertion false, the claim of the applicant falls to the ground. Examples:—
1. Where the subject of demand is money, on the ground of common debt.
2. Subject of demand—delivery of an individual thing, moveable or immoveable, simple or aggregate.
3. Subject of demand—money in satisfaction for a wrong, by the offence of simple corporeal vexation.
4. Subject of demand or of application—informative; publico-private wrong, by theft.
For modes of fallaciousness, other than falsity, see the Book of Fallacies.
Included in such fallaciousness, is irrelevancy—irrelevancy of evidence delivered in relation to the fact properly in question.
Falsity (when not irrelevant) is either completely contradictory to the truth, or incompletely contradictory to the truth.
Falsehood which is incompletely contradictory to the truth, is so either in degree or in circumstance.
By falsity in circumstance, understand the case in which, in respect of some circumstances, the statement appears to be false; but deducting the falsity, enough remains to warrant the judicial call upon the parties.
Example: Where, from the terms of the charge, it appears, whether from self contradiction on the part of the applicant, or from some generally notorious fact, either not known to him or not heeded by him, that the material act stated by him, if indeed it happened, did not happen at the time stated, or at the place stated, or that a person stated as present was not present.
By falsity in degree, understand the case in which, though, in the degree stated by the applicant, the result of the act stated by the applicant did not take place, or could not have taken place, it might, nevertheless, for aught appears, have had place in a degree sufficient to warrant the proposed call upon the pursuer. In this case, the falsity takes the name of exaggeration.
Example 1. In case of debt for goods sold, value as stated, so much; real value, not more than half as much.
2. Amount of the money constituting an equivalent, or satisfaction for damage sustained by goods, from ill-will or negligence, so much; real amount, not more than half as much.
From the amount of the exaggeration, with or without other circumstances, a judgment may be formed, whether it was the result of blameless error, of rash judgment and assertion, of insincerity or mendacity.
By falsity irrelevant, understand the case, where, though the assertion be tainted with falsity, the falsity is such, that, supposing the other parts of the statement true, the ground of the application will not be the less valid. In this case, it may be either blameless, temeracious, insincere, or mendacious. However completely soever irrelevant, it may still be not the less fit to be noted, as well for the purpose of the principal suit, as affecting the trustworthiness of the application, as opposed to any statements by a defendant, as for the purpose of constituting a ground for punishment.
The effect is of a particular kind, where the subject-matter of the deception, or the attempt, being a thing or a person, the erroneous opinion caused, or endeavoured to be caused, is identity with reference to a certain thing or person, wherein diversity is what really has place. As where a thing being the subject-matter, an appearance is put upon it by the deceiver, with the intent, that in relation to it an opinion should be formed, that the cause of its wearing that appearance was and is the agency, not of him the deceiver, or would-be deceiver, but either of some other person, or of unassisted nature. When the subject-matter is an assemblage of the visible signs of discourse, the attempt thus to deceive—the preparation made for deception—by a person (whose writing the discourse does contain,) with the intent that it shall pass as the work of some person other than him the deceiver whose work it really is,—is styled forgery—to wit, of written evidence: when the signs are of any other nature, the forbidden act may by analogy be still termed forgery, but in this case, forgery of real evidence.
In the Greek language, without difficulty, and in the English, if a word imported from the Greek language could be endured, it might be termed prometamorphosis, by analogy to metamorphosis.
False in degree. This may be converted into truth, by simple addition or subtraction.
False in circumstance. Circumstances are, with relation to the principal part of the matter of fact, either essential or unessential: essential in place and time—essential in some place and some time—because no matter of fact can have existed, without existing in some place, and in some time;—but it may be, that neither the individual place, nor the individual time alleged, may have been essential and necessary to the material effect of the principal fact in question.
Histories of trials, if well analyzed in this view, will be of great use in furnishing the mind with ideas of cases applicable on each individual occasion. But general rules, exercising an absolute dominion over decision, should not be made out of them.
Susannah’s elders were deemed false witnesses, because, according to what one of them said, the act was committed under a tree of one sort,—according to the other, it was committed under a tree of another sort. But what if the trees were so placed, that it was committed under both of them?—or, if the animated act, being so much more interesting than the inanimate vegetable, one or both of them had, for want of the necessary appropriate attention, been mistaken as to the tree?
Justice-obstructing application obviated.
On every occasion on which it appears to the judge that the application is groundless and frivolous, he will make declaration to that effect. If, in his opinion, the cause of it be want of due consideration for the value of the time of the judge and the judicatory to the public service, but without consciousness of its groundlessness, he will declare it culpable; and, for the purpose of determent in future, he will impose a small mulct. If, in his opinion, the cause of it be a desire to pre-occupy and employ in waste the time of the judicatory, for the express purpose of producing delay in reference to other suits in general, or a certain suit or set of suits in particular, (in which case, it cannot but be accompanied with evil consciousness,) he will make declaration to that effect, and declare the application groundless and criminal, and impose upon the applicant a much heavier mulct.
The produce of the mulct will in both cases be allotted to the helpless litigants’ fund.
In ordinary practice, no person is admitted to apply for justice, without payment of money under the name of fee. The consequence is, a denial of justice to all those who are unable to pay the fee; and in the case of those who can and do pay it, but can ill afford it, adding hardship to injury—injury by the hand of government, to injury by the hand of the individual wrong-doer. By this means, the government offers encouragement to wrong; in the way here proposed, a pecuniary exaction will act as a discouragement to wrong.
If in consequence of divers instances of groundless application, one with another, it shall have appeared to the judge, that among the applicants or any of them, concert for the production of delay as above—vexation to the judge and judicatory—have place, he will declare as much, and give to the aggregate of such applications the appellation of a conspiracy—a conspiracy for the obstruction of justice; and in proportion to their respective pecuniary circumstances, give increase to the amount of the mulct respectively imposed upon them. Thus there will be so many distinguishable offences against justice—modifications of the offence denominated obstruction of justice—1. Obstruction culpable, through rashness; 2. Obstruction criminal, accompanied with evil consciousness; and, 3. Obstruction criminal, accompanied with evil consciousness and conspiracy.
To the government advocate it will belong to be upon the watch for every such instance of obstruction to justice, and to make demand accordingly for the infliction of the mulct.
So likewise to the eleemosynary advocate, in default of, or at the request, or with the consent of, the government advocate, and with the consent of the judge.
Were it not for this means of repression, nothing would be easier than for a knot of men,—to whose particular and sinister interest the system of natural procedure, on this or that application expected to be made, were detrimental,—to stop the course of justice altogether, and throw everything into confusion: in consequence of which, the only system of procedure conducive to justice, would wear the appearance of being destructive of it.
At the expense of a reward, exceeding, though it were by no more than a small amount, the daily wages of the lowest paid labourer, thousands might be procured in such sort as to occupy for years with groundless applications, the whole quantity of judicial aptitude that could be brought into operation.
Application by a party to a quarrel; or say, Quarrels, how terminated.
An occurrence naturally not unfrequent is this. Between an applicant and a party complained of, a series of supposed wrongs on both sides have had place. In a case of this sort, if, on the occasion of the application made on one side, the judicial service due be rendered to the applicant, no notice being at the same time taken of any wrong done by him to the proposed defendant, justice would be rendered in appearance, in reality not.
As to the multitude of the individual instances of wrong in its several shapes, capable of being done by one individual to another, there is no determinable limit; still less can there be to that of the instances of wrong on both sides. Of no one alleged wrong can the judge refuse to take cognizance, any more than of any other. Whatever in any particular instance may be the number, if on the day of the first application made by the party, cognizance be taken of the whole series, judgment may be pronounced on every one of them on that same day; whereas, if separate days be appointed for each, no limit can be assigned to the quantity of delay which may have place—delay to the suitor, with correspondent needless expenditure of the time of the several actors on the judicial theatre.
This considered, when, in consequence of application made—the applicant is received as pursuer, and the party complained of, as proposed defendant, such proposed defendant appearing—if [Editor: illegible word] be that, by such defendant, wrong in any determinate shape is by him alleged to have been done to him by the pursuer,—the judge, far from inhibiting such counter-complaint, will rather give encouragement to the exhibition of complaints on both sides; to the end that, in so far as practicable, termination may be put to all feeling of ill-will on both sides, to all resentment for wrong sustained, to all apprehension of wrong about to be sustained on either side—in a word, that perfect reconciliation be effected.
In this case, the damage, in whatever shape, from every wrong on each side, will operate as a set-off to every other; an account, as complete as may be, will be taken of what is due on each side; and a balance struck, and payment, in whatsoever may be the appropriate shape or shapes, made accordingly. In the case of an ordinary account of a commercial nature, this is matter of universal practice; in the case here supposed, it may with equal facility have place: a sum of money, due on the score of satisfaction for corporeal vexation, may with as much propriety and facility be set down in account, as money due on the score of ordinary debt; and for wrongs on either side or on both sides, satisfaction in a shape other than pecuniary may be remitted on one side, in consideration of satisfaction remitted on the other.
But though it should happen, that for mutual wrongs in any number, nothing in the name of satisfaction in any shape be found due on either side to either individual,—wrong to no inconsiderable amount may in this way have been done by one or both parties to the public—wrong, that is to say, by the consumption made of the judicial time as above.
Upon the whole, then, two distinguishable courses may, on any such occasion, require to be taken—two distinguishable functions require to be exercised by the judge; that is to say—1st, the conciliative; 2d, the punitive.
To the conciliative he will, to the best of his endeavour, give exercise in every case; to the punitive, at the charge of either or both, if, and in so far as, the circumstances of the individual case appear to him to require.
The increased faculty of extinguishing ill-will, and at the same time rendering complete justice, as between any two or any greater number of persons regarding themselves as wronged, is among the advantages possessed by the system of natural procedure, in comparison of the system of technical procedure—by the proposed system, in comparison of the existing system.
Under the existing system, the impossibility of any such comprehensive and desirable arrangement is entire. Two causes, not to speak of others, concur in the production of it. A judicial meeting of the parties themselves there is none; and the expense of a single suit to the comparatively few who possess the possibility of defraying it, is so enormous as to destroy either the will or the power—or the will and power necessary to the engaging in so much as a single additional one.
By so simple an arrangement as that of the judicial meeting of the parties, in Denmark, under the judicatories called Reconciliation Courts, from two-thirds to three-fourths were struck out of the number of the suits carried before the judicatories acting under the technical system. This, too, under a host of disadvantages, of one of which the bare mention may seem to render unnecessary all mention of the rest:—no power had this judicatory to give execution and effect to its own decisions.
If, under such disadvantages, success was thus extensive, what may it not be expected to be, under a judiciary and procedure system possessing, in a degree so high above everything as yet exemplified, the power as well as the inducement to discover and ascertain what, on each occasion, ought to be done, and when ascertained, the power of causing it to be done?
To receive in no case a counter-demand as a set-off to a demand, would, on the part of the common-law courts, have been an injustice not to be endurable. What remained was to render the field of the application as limited as possible—as limited, and thence as indeterminate. For thereupon came the point, whether, in case of the demand in question, a counter-demand to the effect in question should be allowed. But unless it was on account of the delay with which the elicitation of the evidence in support of the counter demand would be attended,—if, in any one case a counter-demand is allowed, why not in every other?
The judge will have the faculty of exacting at the charge of a person adequate sureties, against whom it is in contemplation to prefer a demand (and who, it is apprehended, is on the eve of departure from the country in question, to some spot not accessible, immediately or unimmediately,) to the powers of the judicatory, to the purpose of effectual justiciability in relation to such demand.
In English law, example of a suit having for its object the securing the forthcomingness of a person for the purpose of justiciability,—the writ, ne exeat regno.
Here the applicability of the remedy falls extremely short of the demand, in respect of its extent over the field of law and judicature; neither is it afforded to any person who is not at once able and willing to buy it of the judge and his partners in trade, at the expense of the most expensive sort of suit—a suit in equity.
Against that system of depredation and oppression, of which law, substantive and adjective—more immediately substantive—is the instrument, and Judge and Co. the self-paid and richly-paid authors, the security that will be seen to be given by those two so intimately conjoined arrangements, viz. the appearance of the parties, and their responsibility in case of mendacity, will upon a detached view be seen to be such, as no person who had not applied himself to the subject with close attention for this particular purpose, could, in the nature of the case, imagine to himself.
Of this same most flagitious system, the arrangements correspondent and apposite to the tutelary one, form the two main points.
By keeping the door of the justice-chamber inexorably shut against parties on both sides, and particularly against those on the pursuer’s side, the partnership forced under this one head, every person who, on either side of the suit, felt himself compelled to take this melancholy chance for that essentially adequate relief, which was to be sold under the name of justice.
For shortness, call this principle, the deafadder principle, or the judicial-deafness principle.
By confining to extraneous witnesses such security as they find it necessary to afford against judicial falsehood, the giving full swing to it to persons in the character of suitors. They thereby let into their net the whole tribe of insincere litigants on both sides of the case: all those who, for the purpose of depredation or oppression in any other shape, could, by the facility thus afforded, be content to purchase their official and most efficient instrumentality and support: to give effect to demands, known to be groundless, and by delay for an indefinite length of time, obtain a proportionable chance for ultimately defeating demands known to be well-grounded.
Here, then, was an immense addition to the greatest number of customers they could have hoped for under any system which had for its object the ends of justice. For addition, say rather multiplication,—multiplication, and by a high power.
At one sweep, it gathered into the net, amongst others, the whole tribe of dishonest debtors; that is to say, of such debtors as by this encouragement they could succeed in rendering dishonest.
Call this principle the mendacity-licence principle, or for shortness, the mendacity-licence. Further on it will be seen improved into a perjury-licence, that encouragement to vice in this all-comprehensively-mischievous form might not be wanting to any class of human beings.
Calling it simply a licence, is not doing justice to it—is not yet painting it in its genuine colours; for when depredation is the object of licence, licence contains in itself the essence of reward.
This was not yet enough: it was almost enough for those who acted in the name of law; it was not enough for those who, as if to give a zest to profligacy, acted in, and prostituted the name of equity. It was almost enough for law; it was not enough for equity.
Not content with encouraging falsehood, they forced men into it. As to the matter of falsehood, common lawyers just contented themselves with vague quantities: false assertions on both sides—falsehood in the initiatory demand—falsehood in the initiatory defence—false declaration—and false plea: all this, however, is in a comparatively small number of words, with comparative moderateness of depredator’s profit.
In the race of profligacy, not inconsiderable is the advance thus made by Common Law; but in this part of the case, as in so many others, she was left behind by Equity.
If a man owe you money, the Lord Chancellor Eldon will do, what the Lord Chief-justice Abbott will not do. He will let you ask the man whether he does not owe you the money, and whether, of the facts by which the debt was produced, the statement you make is not true. Think not, however, that an indulgence so extraordinary is to be obtained without cost. Before you can be admitted to set foot, and that only by proxy, in the temple of Equity, your honour at any rate, whatever part of it consists in abstinence from lying—deliberate and elaborate lying—must be left at the threshold. If the statement of a matter of fact, concerning which you are in ignorance, be necessary to the establishment of your right, being permissioned by equity to call for information at your debtor’s side,—how would you go about it? Would you ask him at once how the matter stands? No such thing will you do, if, on this occasion, your lawyers know their business; for in this way you might ask long enough, before anybody would give you an answer. No: you must come out with a string of lies first, and no otherwise than on that condition will your debtor receive orders to furnish the information and acknowledgment which you have need of at his hands. The very thing which you do not know, and which to the Master of Equity it is known that you do not know, by his instrument, the Master in Chancery, he forces you to declare solemnly that you do know, stating the particulars of it in detail; your lawyer, the attorney called a solicitor, and the barrister draughtsman, consulting their imagination, and weaving a tissue of falsehood for the purpose. This falsehood has its equity name, and is called the charge; and the maxim is—every interrogatory must have for its support a correspondent charge.
Here, then, are so many more words to be paid for—paid for at so much a dozen,—paid for, over and over again, to so many different persons—judges, solicitor, draughtsman, Master in Chancery, Master in Chancery’s creatures,—all of them having, in one way or other, a finger in the pie.
In a more refined, but not the less substantial shape, another mass of profit is yet behind. Of the profit thus reaped from falsehood, the continuance could not but be, in a more or less considerable degree, dependent on the degree of acquiescence on the part of those upon whom, and at whose expense, it is practised. But no sooner were it seen in its true colours, than those at whose expense it was practised, would of course, as far as the law millstone about their neck would admit of their doing, rise up and protest, with one voice, against the vice thus crammed into their mouths, while their pockets were being thus drained.
At the bottom of the system has accordingly always been, so to order matters as that right and wrong, morality and immorality, should be regarded as depending, not upon the effects produced by them respectively on human happiness, but on the oracles from time to time delivered, as occasion called—delivered by these arbiters of their destiny, by these masters of their fate: accordingly, in particular, that falsehood, when forbidden by them, or without being so much as forbidden, punished by them, was wrong; but that the same, or any other falsehood, as often as it was left by them unpunished, became a matter of indifference, and as often as commanded by them—not only right, but obligatory.
With how deplorable a degree of success this has been crowned, the whole community feels but too much unquestionably. In how complete a state of confusion has the most intelligent of nations, for so many centuries, remained!—insensible to the most marked boundary line that distinguishes vice from virtue: swallowing lies upon lies, and bowing down, with unabatable reverence, before the men who force them into their mouths!—absurdity and nonsense, both in the superlative degree, worshipped under the name of learning—vice, in its most sordid form, under the name of virtue!
All this while, of the object of this worship, what there has been in reality is—opulence in league with power. Nor yet has learning been altogether wanting to it.—Learning? but of what sort? Of that which consists in an acquaintance, more or less familiar, with an enormous and ever-swelling mass of absurdity and nonsense. Could but the head be emptied at once of the whole mass, it would be but so much nearer to the being furnished with real and useful knowledge—with that sort of matter, in the denomination of which the word learning can without profanation be applied.
By the opening of the door to all applicants, whose wish it is to obtain, on their own account, the benefit of judicial service, two opposite but correspondent and concurring effects are produced, according to the character of the applicant. On the one hand, to all sincere applicants, an advantage—an advantage, in respect of its extent altogether unprecedented, is secured: on the other hand, to persons at large, against the machinations of insincere litigants, a security alike unprecedented is afforded. On no occasion can any person expose another, in the situation of defendant, to the vexation and danger incident to this situation, without affording to his adversary that security against injustice, which is afforded by the applicant’s thus placing himself in a situation of effectual responsibility, satisfactional and punitional, in the event of the application being regarded as not sufficiently grounded.
[* ]In a code of procedure, the insertion of particular regulations of this sort are necessary to obviate hesitation, doubts, and diversity of practice. In a short time, practice will render them familiar.
[* ]In the English system, the benefitendary has no other name than cestuy que trust. This denomination, being taken from the obsolete law French, is altogether unintelligible to all but lawyers. Conspicuous is the awkwardness of its frame: it is a sort of an elliptical abridgment of a long phrase, the tenor of which remains to be divined: suppose cestuy al bien de qui le trust est creé. In the case of his being regarded as actually benefited, this benefitendary will naturally receive the appellation of a benefitee. But the actual fulfilment of the design entertained or professed to be entertained, is too precarious to admit of the substitution of the appellation benefitee to the word benefitendary. Witness the breaches of trust, the aggregate amount of which, in the case of charitable trusts, is under Matchless Constitution so enormous, as per the commission of inquiry, now so many years depending.
[* ]See Vol. I. p. 96, et seq.