Front Page Titles (by Subject) CHAPTER X.: JUDICIAL COMMUNICATION. - The Works of Jeremy Bentham, vol. 2
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
CHAPTER X.: JUDICIAL COMMUNICATION. - 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.
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
Subject-matters of communication.
Communication.—By this name is designated an operation which bears reference and is a necessary concomitant to, all those others, and of which, on that account, no mention could have been made, till those others had been brought to view.
They, being so many distinguishable ends of procedure, it is, with reference to every one of them, a necessary means: communication, for the purpose of application and judication; communication for the purpose of probation.
Not to secure it, from the very outset of the suit to the very last act in it, on every occasion (and as between whatsoever persons and things, where the existence of it is necessary to the attainment of the ends of justice,) is a flagrant oversight. But should it be found, that for this omission, gold in torrents has at all times flowed into the coffers of those in whose hands the power was of preventing the deficiency, is is it to any such cause as oversight that, consistently with the most ordinary degree of discernment, it can be ascribed?
In Bonaparte’s code, no such flagrant omission has place. Not that the means provided are, in so perfect a degree as they might have been, adequate to the end; but towards the attainment of it, no inconsiderable advance has there been made.
Among the earliest and most anxious cares of the system to which expression is given in this code, and those connected with it, is to secure, from first to last, the existence and efficacy of an instrument so indispensable in the work of justice.
Upon the degree of civilization, and improvement in various other respects, but more particularly in the state of the physical channels of communication (the roads by land and water,) must communication for judicial purposes, in respect of promptitude, celerity, and cheapness, of course be in a great measure dependent.
Persons and Things.—On this occasion, as on most others that present themselves on the field of government,—in these two appellations may be seen the results of a division, of which the nature of the case renders it necessary to make use.
Of this division, both members require a further division, into common and peculiar.
As for other purposes, in all imaginable variety—domestic, and other social and sympathetic intercourse—trade, wholesale and retail, and the business of the several departments and sub-departments in the official establishment, so for this in particular,—the common, one great aggregate instrument of communication is the letter-post establishment, and the aggregate of the several stocks provided for the conveyance of large and heavy burthens,—including the roads, solid and fluid, over and through which the several masses of matter are conveyed, and the beasts, or other instruments of conveyance, by which the requisite motion and direction are produced.
By peculiar, understand those instruments of communication, the use of which is appropriated exclusively to the service of the department here in question.
Modes of communication.
Communication is from persons only; from persons, it may be, either with persons or with things, or with both. From persons to persons, it may be either unilateral or reciprocal. Reciprocal it is, when in consequence of a communication made to a person, another communication is made from that person, to him from whom the first communication came. From a person to a person, communication is made in two different modes: the oral (the only original mode,) and the written. When it is the oral that is employed, the intercommunicants are necessarily, in that respect at least, present to each other: when it is the written, it happens sometimes that they are present, and that, notwithstanding such presence, there may be some special reason for their communicating with each other in that mode; but, in the ordinary state of things, they are at a distance. In this case, if it is in the written mode that the communication is effected, it is termed the epistolary mode: if the mode be not epistolary, the intervention of a third person is necessary; and, in this case, two communications instead of one have place—namely, one from the primary communicator to the third person, who in this case becomes an instrument of communication between them—another from the instrument of communication to the person to whom the communication is made.
Of all modes of communication, the simplest is that which is made in the oral mode, without the intervention of any such third person as above: in that most simple form, communication is cotemporaneous and coincident at the same time with the abovementioned mutually and necessarily cotemporaneous and coincident operations; that is to say, application, judication, and probation. In this case, the occasions for communication lie, as hath been seen, within a narrow compass.
Not so when the applicant, or the person who at his instance has been constituted the proposed defendant, or any non-party, or say, non-litigant evidence-holder, is called in. Now then comes the necessity for some instrument of communication, an instrument which, unless in some rare case, will be of the personal kind—in a word, some person to whom, in the character of a messenger, it belongs to convey the subject-matter of communication, most commonly of that real class, of which written discourse is composed, from the judge to the person to whom the communication is made.
This person being, by the supposition, at a distance from the official place of residence of the judge, now comes the demand for diversification and corresponding complication.
In a country in any tolerable degree civilized, there will be two modes of communication between persons at a distance: the one, which may be styled generally ordinary, to wit, the letter-post, or other public and universally employable receptacle, employed as an instrument of conveyance; the other special, or say particular, to wit, some messenger specially employed for the purpose, making or not making use of some real instrument or instruments of conveyance.
This distinction, though in itself purely theoretical, is pregnant with practical applications, not less obvious than important. Expensive to a degree more or less known by everybody, is even the least expensive submode of the special mode of communication: comparatively unexpensive and economical is the general, or say ordinary modes of conveyance, especially as applied to instruments of communication in the epistolary form.
By appropriate arrangements, the general mode of conveyance, but more particularly the letter-post, might be made to perform (and with not less certainty, and with superior dispatch,) the service by which, in present practice, some special mode of conveyance is commonly, if not universally employed.—But these details belong to a more particular head.
Communication, as we have seen, may be from person to person, or to things, or to persons and things, at the same time.
When it is from person to person, and back again from the second to the first, the two persons may be styled intercommunicants.
Means of communication.
The first point to be determined is at what place the thing in question shall be done: whether in the judicatory, or elsewhere; and in particular at the abode of the addressee, whether party-litigant or extraneous evidence holder. In general, these two cases constitute the only alternative. The reason is, that in general, upon the circumstances it will depend, whether the communication shall be oral or epistolary: oral, if in the justice-chamber; epistolary, if at the abode, permanent or temporary, of the addressee.
But in a particular case, on a particular occasion, need may be, that though made in the presence of the judge, the response will not be to be made in the justice-chamber.
The first source of division is the consideration of the place at which the operation is required to be performed: the next is the purpose for which in that same place it is to be performed.
In the third case, an extraordinary place concurs with an extraordinary purpose: place, not the justice-chamber, but some other, in which, for the special purpose of that individual suit, and the individual operation, it requires to be performed.
The material circumstance is the species of the instrument of discourse,—whether oral, or otherwise evanescent—or scriptitive, or in any other shape permanent: this not by reason of the permanence of the instrument—for, for giving expression to the discourse, an instrument of the same degree of permanence might be employed in the judicatory—but by reason of the distance: hence it is by distance, and nothing else, that the necessity of giving employment to this instrument of discourse, to the exclusion of the other, is created.
On the part of a justiciable, whether party pursuer, party defendant, or evidence-holder, in answer to the mandate issued by the judge, the mode of compliance would be either by attendance or responsion: if by attendance, either at the in-door fixed judicatory, or at the out-door occasional and migratory judicatory.
As to the character, or say capacity, in which the modes of compliance are thus exemplified, it might be either that of party pursuer, party defendant, or evidence-holder, or some individual at large, incidentally and casually addressed, for the purpose of contributing, by means of some incidental services which it fell in his way to be able to render, to the giving execution and effect to the law on which the suit was grounded.
Here, then, comes the need for so many corresponding mandates:—
1. Accersitive, or say hither-calling mandate. This when the place at which the service is performed is the judicatory: the service itself is the ordinary in-door service.
2. Missive, or say thither-sending mandate. This when the place at which the service is performed is an incidental and migratory judicatory: the service itself is out-door service.
Only by personal attendance at or in the judicatory, can commencement as above be given to a suit: in which case, the need of missive mandate, on the part of the judge, may be apt to appear superseded. But the individual who, at the first application, is constituted a pursuer, might be either the applicant himself, or any one of two other descriptions of persons: to wit, where the applicant is an assistant, professional or gratuitous, such proxy, or say deputy, being for one or other of the best of reasons admitted instead of the principal; or a ward-constituted pursuer, in consequence of the application made by his guardian; or in a word, who is himself a pursuer, so it be at any period of the suit, after the first; the ward being constituted pursuer in his own right, and for his own benefit—the guardian in the right and for the benefit of the ward, or other trust.
On the part of the addressee, in whatever capacity addressed,—party pursuer, party defendant, or supposed evidence holder, or individual at large,—rendering response in some shape, will be an operation indispensable in every case. By the response, if pertinent to the matter in hand, either compliance with the obligation imposed by the mandate will be completely manifested, or (though for some reason assigned, not at the time performed) promised for some other time, or declaredly declined; if declined, then the object of the response will be, to exonerate the individual from the burthen of eventual suffering, either by satisfaction afforded, or by punishment suffered, or both.
With regard to the means of intercourse, thus much is good and true in general,—that on each individual occasion they must be settled with, and adjusted to, the circumstances of the individual with whom the intercourse is to be secured.
As to those individual means, the general nature and character of them will be liable to vary according to the condition in respect of civilization of the country in question: they will depend partly upon the situation of the individuals to be communicated with, partly upon the nature of the means of communication which the state of the country affords.
As to the condition of the individual, in proportion as opulence is abundant, the means of communication are at once capable of being rendered more prompt and more secure: the greater the number of inmates in a house, and the more constant the habit of residence on the part of each, the greater the certainty of conveying to the knowledge of the head, or any other member of the family, the information requisite. In a certain state of society—that, for instance, which to so large an extent has place in America—many are they who have no fixed place of habitation; many again, they who, having each a fixed habitation, leave it habitually unoccupied for any length of time: even in Switzerland, this latter case is to no inconsiderable extent exemplified.
As to the British Isles, in no part of them is this case exemplified to any considerable extent. Under the name of vagrancy, voluntary or involuntary, such is the benevolence and wisdom of English parliaments, it is ever punished as a crime.
In Ireland, the meanest hovel—and such hovels are but too numerous—is either entirely open, or has a door to it: in the general state of things, a door has place; but this being by appropriate force moveable, and as such distrainable, and being, in but too many instances the only thing worth distraining, is sometimes, say all the accounts, distrained for rent. Where the door does not exist, any missive sent by authority may find its way in: with so much the less difficulty where there is a door, the having in it a slit adequate to the purpose of epistolary communication might, without sensible hardship, be rendered a condition indispensable to the use of this instrument of security.
Antecedently to the letter-post, scarcely by the most opulent condition in life, could any absolutely secure means of epistolary intercourse be established. By letter-post, no condition in life so abject, but that, for any purpose such as that in question, it might, in the case of every individual, be established in every instance.
In every the smallest division of territory, the existence of a local headman being supposed, here would be a spot by repairing to which, an individual who had no settled habitation might be sure at any time of finding anything sent thither to his address. For nowhere in the territory of a state could an individual find himself, without finding himself in the territory of a local headman. In the official residence of this functionary, the individual who had no fixed habitation might at all times be sure of finding whatever it had been made his duty to see: and if unable himself to read, there he would moreover be sure of finding those, in whose instance no such inability could have place.
For him who had no fixed habitation of his own, judicial missives—he being prepared and pre-engaged to receive them—might be addressed to him at the local headman’s office: and for diminution of vexation to him who has a fixed habitation, another exemplar might be delivered at that same habitation; and so in the case of his having habitations more than one: and in this way may the most convenient provision be made for every occupation and situation in life.
Remains for consideration, the system of intercourse which the country affords: the territory of the state in general, and that portion of it in particular, from, to, and through which, on the individual occasion in question, the communication requires to be made.
In England, compared with all other countries on the globe, for this purpose as for every other, the adequacy of the means of communication is at its maximum, and by the spread of railroads, with self-moving receptacles moving on them, the maximum is in the act of undergoing prodigious increase.
For general purposes at large, and for commercial purposes in particular, in a country in which the population is at such a degree of density, the government post-office performs this function in a manner, the advantages of which are so strongly and universally felt. Justice, alas! presents a very different state of things. On this occasion comes the observation, that, unfortunately for England, the purposes of justice have never been the purposes of judicature, or the purposes of government: had they been, long ago the missionaries of the post-office would have been the missionaries of judicature; modes of delivery and receipt, together with appropriate documentary evidence of the facts, having for this purpose been established. But by the hierarchy of the post-office, probably by the hierarchy of the judicial establishment, obstacles, and those as insuperable as they could contrive to render them, would of course be opposed: to the most effectual and least vexatious arrangement that for this purpose could be proposed, the answer would of course be attached,—useless, mischievous, and impracticable: an official answer rendered familiar to him who writes this, by the habit of seeing it returned to proposed arrangements, which afterwards, when carried into effect, were found beneficial and unexceptionable.
For what purpose soever, and in what character soever, on the occasion of a suit or other application, an individual makes his appearance for the first time, the judge will not suffer him to depart, unless he has given indication of some habitation or habitations, at which, during the continuance of the suit, any mandate issuing from or sanctioned by the judge (whether of that territory or any other) will be sure to reach him, if transmitted by the letter-post, or any special messenger.
Of two habitations, indication may be given in the first instance: as thus, till July the first inclusive, a mandate will reach me, parish A of this territory, habitation No. 223; from July the 1st to July 7th, in territory (naming it,) parish C, habitation 67.
Of places of habitation, one after another indication may thus be afforded.
At any time, and so toties quoties, the indication given of the intended place of habitation may be changed.
Of every such, indication so given, it will be presumed, that down to the last day in each instance any missive delivered at the habitation so indicated has been received by the individual in question, with a view to the purpose for which it was sent, that is to say, in the case of a judicial mandate, with a view to compliance therewith, in such sort that for non-compliance, prehension of the body may be effected.
By any one, in the list of appropriate excuses, the individual non-complying may be originally exempted; or, as the case may be, subsequently liberated from the necessary afflictive consequences.
Such excuse may be either ordinarily emanating, or vicarious: ordinarily emanating, when from the individual himself; vicarious, when from any other person.
Of these there are three lists:—
List 1. Containing those excuses which, in the nature of the case, cannot or are not allowed to emanate from any individual other than him to whom the missive is addressed.
List 2. Containing those which cannot, in the nature of the case, or are not allowed to emanate from the individual himself, and if delivered, must have been delivered by or on behalf of some other person.
List 3. Containing those which may indifferently have emanated either from the individual himself, or from some other person.
This business of securing judicial intercourse cannot but be attended with much diversification, and considerable difficulties: which difficulties are in considerable proportion the result of the natural, as contrasted with the technical system of procedure. Under the technical system of procedure, they have no place. Why? Because, under the techical system of procedure, no suit ever finds its way into the judicatory, but through the medium of a technical assistant.
1. Difficulty the first. The individual an individual by whom an offence in some shape or other has been committed, and who, in the event of his attendance in the judicatory, would expose himself to prehension on the ground of this offence.
Resource, or say arrangement for removal of the difficulty. If the punishment, or other burthen attached to his offence, is more afflictive than privation of the benefit sought for by his attendance, he will abstain from such attendance, and the burthen resulting from non-attendance will be a part, though by supposition no more than a part, of the suffering which is his due; in the other case he will attend. The suffering in question he will undergo; but he will receive a benefit, amounting to the difference between that suffering, and the suffering to which he would be subjected by non-attendance.
In the case of him by whom a professional assistant is employed, all difficulties may be made to disappear by his consent that every missive addressed to him at the habitation of such his assistant, shall be presumed to have been received by him within the appropriate time.
The case in this respect is very different according as it is in the character of proposed pursuer that the individual attends, or in any other character. If in the character of a proposed pursuer, the benefit expected by him to be gained by the suit is a benefit which, by any want of adequacy on the part of the indication afforded, he will be liable to forfeit, and which will accordingly operate as a security for such adequateness.
So, if it is in the character of a trustee regularly constituted, or self-constituted, that he attends. In this case, likewise, the correspondent security will have place, and by the amount of the benefit sought, will supersede the demand for an inducement of the coercive kind in any other shape.
But in every other case than this, such coercive inducement will manifestly be necessary; in particular, if the individual in attendance be a defendant, or an extraneous witness.
2. Difficulty the second. The individual in attendance, say an applicant, a person whose character is without reproach, but who, in respect of his means of livelihood, is in a state of uncertainty each day at what habitation his occupation may require him to be on the next.
In this case, he being by the supposition an applicant, he may be depended upon for doing whatsoever is in his power to save himself from being debarred from the benefit he seeks: as, for instance, giving indication of the employer or employers’ habitation for whom he expects to be occupied. If his situation is so unfixed as to deprive him of this resource, the case is of the number of those unfortunate ones, for which the nature of things allows not any remedy. At any rate, this inconvenience cannot be chargeable on the natural system; for under the technical system, an individual so circumstanced would not be able to obtain any such assistance.
3. Difficulty the third. The individual in attendance is one whose attendance is the result of compulsion; he being either a defendant, or an unwilling extraneous witness.
In this case, the judge will have to choose between the evils, and act accordingly—
1. The depriving the party who is in the right, of the benefit of the attendance in question.
2. The subjecting the individual, so in attendance, to confinement, so long as is deemed necessary to the purposes of the suit.
4. Difficulty the fourth. Neither the individual in question, nor any person in the habitation occupied by him, able to read.
Expedient for removal,—recourse to some constituted authority, resident in the parish in which the habitation, actual or expected, of the individual in question, is situated.
The person to whom this memento, signed by the judge, or, under his general direction, by the registrar, is to be delivered, is every person upon his first appearance in the justice-chamber before the judge.
The object, purpose, and use of this instrument, is the securing to the judge the means of communicating with the proposed communicant for the purpose of the suit, until the termination thereof, or until the end of the time during which it may happen to the judge to have need of such communication for the purposes of the suit. As soon as the need of communication with the intended communicant has ceased, information thereof will be afforded him by the registrar. Denomination of the instrument employed for this purpose,—an ulterior-communication release.
The following should be the form of the future-communication-securing memento:—
1. Mention the individual’s name and description at length, to wit, surname, christian name or names, or the equivalent. Office, if a functionary; other occupation, if a non-functionary; and abode or abodes permanent, if any. Such is the description you have just given of yourself.
2. Take notice, you have declared that until, by an ulterior-communication-release, delivered as above, you have been released from the obligation of communicating with this judicatory, for the purpose of this suit (or application,) every judicial paper, if delivered at that house, will be received by you, or by some agent of yours, authorized on your behalf.
3. In consequence, except in case of legitimate excuse (of the number of those to which the serving in that character has been given by law,) you will, in the event of non-compliance with any judicial mandate, delivered or left at such your chosen place of communication, be punishable, or otherwise dealt with, as for contumacious non-compliance.
At the first bilateral attendance, it belongs to the judge to collect and complete, at the hands of the defendant, information correspondent to that which, on the occasion of the first unilateral attendance, was required to be furnished to the judicatory, and entered upon the register.