Front Page Titles (by Subject) CHAPTER XII.: INITIATORY HEARING. - The Works of Jeremy Bentham, vol. 2
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CHAPTER XII.: INITIATORY HEARING. - 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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Commencement of a Suit.
Every suit must have its commencement: in this circumstance all suits agree. But different sorts of suits, or suits of the same sort, may be commenced in any one of a considerable variety of modes.
Under the present proposed code, every suit takes its commencement in the same manner: personal application made by some individual to the judge; for, to the judge, and to him alone, belongs the power to give execution and effect to it. This accordingly may be styled the natural system of procedure.
Sooner or later, at some time or other, an application by somebody to the judge (unless he himself will give commencement to the suit,) cannot but be made. But if made at all, at what other period can it with so much propriety be made—be made with so little danger of substantial injustice, with so little of evil in the shape of expense, vexation, and delay? The expense is minimized; for the sole expense is that of the applicant’s time: vexation is minimized, for to no individual is vexation in any other shape produced; and, in the case of that individual, the vexation is more than compensated for, or he would not inflict it on himself: delay is also minimized, or rather at this point it is excluded.
In no other mode can commencement be given to a suit, without a mass of evil in the united shapes of expense, vexation, and delay, to which there are no bounds.
To commencement in this mode (if this be the mode throughout the territories of the state,) a multitude of judicatories, stationed with reference to facility of approach to applicants, are evidently indispensable. But whatever be their number, it follows not, that in the mode of procedure (military judicature being out of the question,) any the smallest difference should have place.
Under the English judge-made law, not only different sorts of suits, but in different judicatories, suits of the same sorts, take their commencement in a variety of different manners.
In all these judicatories, the mode of commencement agrees however in this; to wit, that the suit does not commence by personal application made by any individual to the judge. Should any such application be made, it would be instantly, and not without indignation, refused—a refusal with indignation, which, were the application made in secret, would beyond dispute be justifiable and indispensable.
Two different modes of commencement are here distinguishable:—1. Non-penal, styled civil; and, 2. Penal. In the civil, moreover, may be distinguished, two sub-modes—the common-law mode, and the equity mode.
The common-law mode is that pursued in the common-law judicatories; to wit, the King’s Bench, the Common Pleas, and the common-law side of the Exchequer.
In all cases, the object being to put money into the pockets of the judges, to that object, and that alone, except the like benefit to the other members of the firm of Judge and Co., the mode of procedure is made subservient. In Westminster Hall and its purlieus, Judge and Co. keep open shop. For the profit upon the expense, they sell to every individual that will pay the price of it, the power of imposing expense and vexation to an amount more or less considerable—to any person, and any number of persons, or purchasers, as may choose—at whatever distance it be from the shop, so it is within the limits of the English part of the kingdom. To this shop, the plaintiff who has suffered wrong is forced to make application, and thus add suffering to suffering ere he can begin to take his chance for relief. The plaintiff whose object is to do wrong, employs the hand of the judge as an instrument, and having paid the price of it, is then enabled to commence the career of wrong, heaping suffering upon suffering, until the measure of intended wrong is filled, and the proposed quantity of suffering produced.
At these same shops are sold, in this shape, with the exception of certain privileged classes, the personal liberty of every man, to whoever would pay the price, down to a certain time within the memory of men now living, without other condition than that of paying the price; since that time subject to a condition, which, while it diminishes the evil in extent, gives increase to it in magnitude. The seizure of the person cannot take place without a previous written instrument, consisting of a declaration made by the plaintiff, and sanctioned by an oath, affirming the existence of a pecuniary demand on his part, to a certain amount on the score of debt.
Of the founders and supporters of this system of law, the morality may be seen in the length of time during which this unlimited sale of this unlimited power of oppression continued to be carried on: and also in the inadequacy of the remedy to its professed purpose. Instead of being creditor to his intended victim, the plaintiff may be his debtor to an unlimited amount; and still, without incurring the professedly threatened penalty, he may work the intended wrong. By a word or two, the form of working it with impunity could have been refused to every plaintiff, who could not prove himself creditor upon the balance. To mischief, working by Judge and Co., matters are so ordered, that by no hand can remedy be applied other than that of Judge and Co. It is, accordingly, on every occasion, sure to be as secure and as fertile in ulterior mischief as the craft can make it. In parliament, by no hand but by that of a lawyer, can relief to any oppression, of which law is the instrument, be applied. If no one appears, the bill is of course rejected; scorn and contempt being at the same time the reward of the benevolent hand by which it was presented. I am not prepared, says the chief of the king’s longrobed creatures in the House of Lords—I am not prepared; and in this situation the non-preparation has the effect of the king’s negative.
Initiatory application, litiscontestational.
The applicant being established in the character of a litiscontestational applicant, or say pursuer, and a correspondent memorandum entered on the register, the judge will-have to consider the next operation, or assemblage of operations, which the nature of the case requires at his hands.
These operations may be either operations affecting persons alone, operations affecting things alone, or operations applying to persons and things.
Exceptions excepted, the next operation will be performed by the issuing of—1. A proposed defendant’s attendance-requiring mandate. In case of defendants more than one, an attendance-requiring mandate for each one. 2. A proposed defendant’s examination-mandate, or say examination-paper; and so where there are proposed defendants more than one, defendants’ examination-paper addressed to each; the proposed defendant being, in this case, the only person addressed in the first place.
Exceptions are, when in consideration of the state of the case, as resulting from the examination of the applicant, as entered in the record it appears to the judge that the purposes of justice are more effectually accomplished by the simultaneous or previous issuing of an attendance-requiring or examination mandate, as the case may appear to require, addressed to a proposed co-pursuer, or to a supposed evidence holder, and proposed furnisher of evidence, personal, real, or written, or of all three sorts, or of any two thereof, as the case may be.
In case of need, in lieu of an attendance-requiring mandate, the judge may, in the case of any one or more of such persons, issue a prehension mandate.
Of the need of a prehension mandate, in lieu of an attendance-requiring mandate, at the charge of the proposed co-pursuer, an example may be found where, in relation to the service required at the hands of the judge, the proposed co-pursuer has an interest conjoint with that of the applicant; but an apprehension exists, lest, through indolence or fear of resentment, at the hands of a proposed defendant, the proposed co-pursuer might be induced rather to give up the pursuit of such his interest, than join in the pursuit of it.
Note, that if the apprehended non-pursuit would have for its cause fear of resentment, as above, it may be for the advantage of the proposed co-pursuer, that his junction with the applicant pursuer should appear to be the result rather of inevitable necessity, than of consent.
Of this need of a course taken for causing the attendance, or even response, on the part of a proposed co-pursuer, antecedently to attendance or response on the part of a proposed defendant, or even to the issuing of a mandate for the procurement thereof respectively, the same example may serve.
Of the need of an attendance-requiring, or a prehension mandate, at the charge of a supposed evidence holder and proposed evidence furnisher, examples are the same as in the case of a proposed co-pursuer; and the reluctance on both accounts will be more apt to have place.
In regard to attendance-requiring or prehension at the charge of a proposed evidence furnisher, the question for the consideration of the judge will be, by which course the greatest detriment would accrue to the interest of both parties and the public; to wit, by the vexation attached to the furnishing of the evidence, or by the danger of a decision adverse to the interest of the applicant-pursuer for want of the evidence so desired.
Of the vexation attached to the furnishing of the desired evidence, the quantum will be considered on each of two suppositions; to wit, absence of compensation, pecuniary or quasi-pecuniary, and receipt of compensation in such quantity and quality as the judge may think reasonable, and the applicant pursuer able and willing to allow.
On the occasion of such allowance, it will also be for consideration what, if any, ground there is for the expectation, that in the event of the pursuer’s succeeding in his demand, it will be right (the pecuniary and other circumstances of the proposed defendant considered,) and practicable at the same time, consistent with justice, that the burthen should be transferred from the shoulders of the pursuer to those of the defendant.
To this purpose, a circumstance pre-eminently material will be the importance of the proposed evidence-furnisher’s evidence, with relation to the event of the suit. The case in which this importance will be in the highest degree, is that where, for the proof of the supposed fact, the nature of the case does not at the time in question afford any evidence other than his. Next comes that in which, in interest or supposed affection, the supposed evidence holder and proposed evidence furnisher, is apprehended to be adverse to the pursuer’s person, or to this his demand.
The greater the number of the persons capable of furnishing the evidence required, and the more material the evidence in the instance of each, the less will be the need for taking the more vexatious course for the procurement of their evidence respectively.
For the more effectual avoidance of needless delay, or vexation and expense,—out of the whole number of supposed evidence holders proposed to him, the judge may take for examination in the first instance any lesser number, reserving to himself the power of doing the like in the case of any additional number; and this not only at a time anterior to that of the defendant’s answer, or personal attendance, as the case may be, but even at a time posterior, not only to that of the defendant’s response or attendance, but to the time of his having furnished evidence from extraneous and non-litigant witnesses.
Reiteration of suits—none.
Previously to the giving admittance to the applicant in the character of pursuer, the judge will examine him as to the having made the same demand by application to any other judicatory.
Exceptions excepted,—in respect of no suit which has been terminated, or is pending in any judicatory, shall application be made by any party, on either side, to any other than the appropriate appellate judicatory.
For in this case, such fresh suit would, if suffered to be entertained, have the effect of an appeal.
Exceptions may be when, after the termination of a suit in an immediate judicatory, whether without appeal or with an appeal, evidence, the existence of which the applicant had no knowledge or suspicion of, has been made known to him: at the same time that for the elicitation of the aggregate mass of appropriate evidence, including that which had been elicited in the course of the former suit, in the judicatory thus applied to in the second instance, the suit may be carried on, and terminated in a manner more conformable to the ends of justice, direct and collateral together, taken in the aggregate, than in the judicatory in which, in and by the first suit, it received its termination.
On an occasion of this sort, by the examination of the applicant, the judge will obtain satisfaction in relation to the facts, from which it will appear, on the side of which judicatory the balance is, in respect of preponderate convenience.
If, of the evidence thus adduced, the effect be that of counter-evidence, in relation to a principal, decided upon on the occasion of the former suit, the judge will use his discretion as to the taking for the ground of his decision in addition to the fresh body of evidence, the evidence elicited on the occasion of the former suit, as exhibited in the record, or re-eliciting the evidence elicited on that former occasion; or, after eliciting the fresh evidence, referring the applicant to the judicatory in which the suit received its termination in the former instance.
In case of his determining to employ the evidence elicited in the former suit, an exemplar of it will, of course, unless mislaid or lost, or wilfully destroyed, be already in the possession or power of the applicant.
In contemplation of this contingency, if the stock of such exemplars (eight in number which are as many as are capable of being in equal perfection taken at once) be not exhausted by other more certainly needful demands, there may be a use in furnishing the party or parties on both sides, with additional exemplars respectively.
It may be, that by a party in whose disfavour, (though as far as the mass of evidence actually produced is considered on sufficient grounds) the suit received its termination, expectation of being able at some future time to exhibit a piece of evidence, not at that time in his possession, power, or even knowledge, may be entertained. In this case it will rest with him to request of the judge for this purpose a spare exemplar, and with the judge to grant or refuse it according to circumstances as above.
If the fresh evidence, as announced, do not contain in it any evidence of a nature to operate as counter-evidence in relation to a principal fact evidenced to,—a principal fact of the number of those, to the probation of which evidence was employed in the former suit; but only evidence in support of a counter-fact, that is to say, a fact constituting, or helping to constitute, a decision opposite to that come to in the former suit;—in such case the judge will not entertain any objection to the decision come to as to the matter of fact in the former case by the other judicatory: but in relation to the evidence adduced as proof of the counter-fact, he will pronounce such opinion as appears to him well grounded, and therefore and thereupon, such imperative decree as the case requires, in affirmance or disaffirmance of the decree pronounced on the occasion of such anterior suit.
On this occasion, as on every other in which a fresh suit is endeavoured to be commenced on the ground of evidence alleged to have been discovered not till after the elicitation of the evidence in the course of the former suit, the judge will with particular attention scrutinize into the truth of the allegation, lest by needless reiteration of suits, danger of misdecision or delay, vexation and expense, should, by evil consciousness, negligence or temerity, be increased.
It may be, that after the decease or incapacitation of him who was pursuer or defendant in the former suit, discovery of fresh material evidence may have been made, or may be alleged to have been made, by the post-obituary, or other representative of the party in that former case. In this case it may naturally happen, that the knowledge of what passed on the occasion of the former suit is not so perfect and adequate on the part of the representative, as it would have been on the part of the principal: and in particular what may happen is, that though the spare exemplar had been obtained by the principal, neither of the one nor of the other is the existence known to the representative.
For the ascertaining the fact of the existence of such anterior suit, the judge will, in case of doubt, address himself by an appropriate instrument—an information-requesting address, to any such judicatory or judicatories as the occasion shall have suggested to him as likely to possess the information needed.
In the demand paper will be inserted the denomination of the offence, to which it appears that the act is referable.
As in numerous instances the offences run into one another in such sort, that the same individual act may without impropriety, be susceptible of several denominations,—or it may as yet be matter of uncertainty to which of several the evidence may, on judicial examination be found to apply—divers offences may to this purpose be named in the disjunctive.
When the demand paper is brought ready filled up under the proper heads, time will so far be saved, and trouble saved to the judge: it will in this case have been the work of the pursuer, or his legal advisers.
In the case where an uninformed and unassisted individual comes to tell his story to the judge, it will belong to the judge, upon taking his examination, to fill up the demand-paper.
As the supposed facts come out in the course of the examination, the denomination of the offence may from time to time be amended toties quoties: offence or offences struck out—offence or offences added.
By the same person, to the same person, wrong in an indefinitely numerous variety of shapes, each of them characterized by the denomination of an offence, may have happened to have been committed. By one and the same lot or mass of evidence, it may happen to it to have been substantiated; by decision pronounced on all the demands at the same time, delay, vexation, and expense will be minimized.
Thus, by the multitude of the instances of wrong, no room is afforded for the giving impunity in any of them.
In this case, whatsoever has been the number of the wrongs committed, each productive of its separate mischief, so many separate demand papers may there be.
It may be, that in regard to several wrongs committed on the same day, by the wronger on the wronged, in the instance of one or more of them, the wronger has had one or more accomplices; in another, others; in another, none. Out of this circumstance arises a farther demand for separate demand papers.
Demand and suit simply requisitive—not inculpative.
Heads, under which the matter of a pursuer’s demand is to be stated for the purpose of the judge’s determination, whether to call upon any person, in the character of a proposed defendant, to comply with the demand, or contest it:—
I. Pursuer or pursuers, who.
Heads under which entries are to be made in relation to each:—
2. Condition in respect of marriage, viz. whether, i. Never married; ii. Widow or widower; iii. Married.
3. Age. Time of birth, if not exactly known, according to conjecture; if exactly known, year, month, and day of the month.
4. Birth-place; whether within or without the territory of the state: if within, mentioning the district, subdistrict, and bis-sub-district.
5. Occupation—or occupations: profit-seeking, if any, what; so, official.
II. Means of intercourse for the purpose of the suit.
I. Habitation, to which a mandate or other message from the judicatory may be directed with assurance of its being received,—the habitation being identified, as per Election Code. On every change, the information under this head will have to receive a corresponding change.
III. Effective service demanded.
This is that which is performed by concurrence in the division of the subject-matter, of one inchoate and ineffective, into a number of consummate and effective rights; to wit, by the correspondent judicial service.
N. B. The right to an as yet unliquidated portion of an aggregate mass of property, is an inchoate and ineffective right as to every part of it: the right to any such part, when, by an act of the judge, separated from the rest and conferred on a demandant, to be by him possessed in severalty, is a consummate and effective right; the exercise of it not requiring any ulterior act on the part of the judge.
For the list of the cases in which, to render it as above effective, a right requires a corresponding act or set of acts on the part of the judge, see—the Right-conferring Code, or say, the Non-penal Code.
IV. Collative portion of law relied on.
Under this head, mention will be made of the code, chapter, section, and article, in which inchoate rights of the sort in question are mentioned, with the cases and modes in which they may be rendered consummate.
V. Collative fact alleged.
This will be an individual event, or state of things, of the number of those which, in virtue of the correspondent collative portion of law, have the effect of giving to the person in whose favour they have place, the right to demand the effective service of the sort in No. III. mentioned. Example:—
P. E. being possessed of a portion of land called Springfield, situated in the bis-sub-district called Highbury, having four children, of whom the pursuer D. E. is one, died, to wit, on or about the 1st of January 18; whereby, under the law, as per No. IV. the pursuer is entitled to demand at the hands of the judge, one equal fourth part of the said portion of land, and at the hands of the other three, their concurrence in the division so to be made.
VI. Co-demandant or demandants,—none. Proposed defendants—A.E., B.E., and C. E., co-interessees with D. E. as above.
VII. Evidence looked to in proof of the collative fact alleged, as per No. V. personal: the declarations expected from the mouths of C. G., E. H., and M. R., who were present at the death.
VIII. Ablative fact, none. Example:
1. To no person had the deceased transferred the said land, or any part of it.
2. No statement had he made, ordering any other disposition to be made of it.
IX. Counter-evidence,—none—no person either entitled or disposed, by oral judicial statement, or otherwise, to deliver evidence, in contradiction to the legitimacy of the pursuer, or the death of the person hereby alleged to be dead.
X. Counter-demand,—none. No person has, or conceives he has, any demand upon the pursuer, of such sort as to disqualify him from making this demand.
XI. Judicial service demanded. This service consists in the issuing and giving execution and effect to such judicial mandates as shall be requisite and sufficient to put the pursuer in possession of his said equal fourth part of the said land.
This case is the one first brought to view, as being, in appearance at least, the simplest. But it is one by which but a small part of the field of law, substantive and adjective together, is covered. It is, however, the sort of case by which the greatest variety of complication is exhibited; and in which the mass of unavoidable delay, vexation, and expense is apt to be maximized.
The demand inculpative, but not criminative.
Heads under which the matter of the pursuer’s demand is to be stated for the purpose of the judge’s determination, whether to call upon any person, in the character of a proposed defendant, to comply with the demand, or to contest it:—
I. Pursuer or pursuers, who.
Heads under which entries are to be made in relation to each:—
1. Sex.—2. Condition in respect of marriage, viz. whether, i. Never married; ii. Widow or widower; iii. Married.—3. Age. Time of birth, if not exactly known, according to conjecture: if exactly known, year, month, and day of the month.—4. Birthplace, whether within or without the territory of the state; if within, mentioning the district, subdistrict, and bis-subdistrict.—5. Occupation or occupations: profit-seeking, if any, what; so, official.
II. Means of intercourse for the purpose of the suit.
1. Habitation, to which a mandate, or other message from the judicatory, may be directed, with assurance of its being received, the habitation being identified, as per Election Code.
On every change, the information under this head will have to receive a corresponding change.
III. Effective service demanded; to wit—Appropriate satisfaction for some wrong alleged to have been done to the pursuer by the proposed defendant; that is to say, for some individual act, productive of damage in some shape to the pursuer, and as such at least culpable; belonging to some one of the sorts of offences mentioned under the head of private offences, or offences against individuals, in the wrong-restraining, or say, the Penal Code; mentioning the name of the sort of wrong, with the chapter or chapters, section or sections, and article or articles, in which the description of it is given, together with that of the sort of satisfaction provided in respect of it.
IV. Collative portion of law relied on by the pursuers.
This will consist of the article or articles referred to, in the manner in No. III. particularized. It is called collative, in respect of its conferring on the pursuer the right to the effective service demanded, as per No. III. Collative with relation to the pursuer’s title to the service, as above, demanded by him,—it will, with relation to the burthen imposed on the defendant, by the obligation of rendering that same service, be onerative.
V. Collative fact alleged.
This will be the committal of an individual act, of the sort of some one of those mentioned in No. III.
VI. Co-demandant or co-demandants, it any, and proposed defendant or defendants.
Those persons, to wit, who, by the pursuer are looked to in those several capacities; with their several descriptions, as per No. I.: also the means of intercourse with them respectively, as far as known or believed, as per No. II.
VII. Sources of the evidence looked to in proof of the collative fact alleged, as per No. V.; to wit,
Such persons, together with such writings, and such other things, if any, as the pursuer looks to, in that character, for support to his demand. The evidence itself will remain to be elicited at the hearing, from those its several sources.
VIII. Ablative facts negatived.
Of any adequate ablative fact, the effect will be, in every case, to take away any right conferred by a collative fact. The affirmance of the non-existence of all such ablative facts must therefore be exacted, as well as the affirmance of the existence of a collative fact, as per No. V., and thence of a right to the effective service demanded, as per No. III.
Ablative with relation to the pursuer’s title to the service demanded by him,—with relation to the burthen imposed on the defendant by the obligation of rendering that same service, it will be exonerative.
IX. Counter-evidence, if any, from what sources expected. Counter-evidence, or evidence either in disproof of a fact which, with reference to the pursuer’s demand, is a collative fact, as per No. V., or in proof of a fact which, with reference to it, is an ablative fact, as per No. VIII.
X. Counter-demand, whether any, and if any, what, according to the knowledge or belief of the pursuer, declared: counter-demand, to wit, a demand on the part of the proposed defendant, at the charge of the now pursuer. Any such counter-demand, if just, will, according to the value of it, compared with that of the corresponding effective service, as per No. III., take away the pursuer’s right to it.
But it will not afford, as an ablative fact would, a ground for the dismissal of the demand: only for doing away, or lessening the amount of, any preliminary security which might be needful for securing execution to the collative law, as per No. IV., and thence to the pursuer the benefit of the effective service.
XI. Judicial service demanded.
This will consist in the performance of all such judicial acts as will be necessary to the effective service, as per No. III., to be rendered.
Demand criminative,—Offence, case and suit, penal, and publico-private.
I. Pursuer, with description and means of intercourse, as before.
II. Effective service demanded:—
i. By the individual wronged,—satisfaction, to wit—1. The restitution of an article of property, furtively taken; 2. Money, in compensation for the loss, and vexation and expense occasioned by this pursuit.
ii. By the government advocate,—the service that will be rendered to the public, by the defendant’s being made to suffer the appropriate punishment; to wit, by the tendency of such punishment to restrain others from the commission of the like offences.
III. Collative law invoked,—the law by which, for theft, a man is rendered as above, satisfactionally, and moreover punitionally responsible.
IV. Collative fact alleged,—the act of theft, whereby the article was stolen by the proposed defendant.
V. Defendant,—A. L, inmate of the habitation No. 4, in Cross Street, in the town of Woolton, in this subdistrict, labourer.
VI. Evidence,—personal. The statement ready to be declared by me the pursuer, who saw the act of theft committed by proposed defendant, and who, having prehended him, have brought him hither.
VII. Counter-evidence,—none. Neither the proposed defendant nor any other person can, to my knowledge or belief, allege with truth, anything in contradiction to No. IV.
VIII. Ablative facts, none. No fact whatever, can in the character of an ablative fact, apply to this case, unless where (with reference to punishment,) evidence of one codelinquent may have been offered, with or without reward, for the discovery of another or others.
IX. Counter-demand. None applies to this case.
X. Judicial service. This will have two branches, correspondent to those of the demand:—
1. Service to the individual wronged, by causing the stolen goods to be restored to him by the theif, together with money obtained by the loan or sale of any such property, immoveable or moveable, as he may happen to have, in compensation for the private wrong, as above; to wit, by the several appropriate judicial mandates.
2. Service rendered to the public, by the issuing of any such incarceration or other punitional mandate, by the execution of which the imprisonment or other punishment may be inflicted.
Of the case where the demand is in its nature invariable, examples are as follows:—
1. Subject-matter of the demand,—the entire property of this or that individual thing moveable—as a beast, or article of furniture, &c.
2. Or of a thing immoveable—as a house with the appurtenances, a piece of land, &c.
Of the case where the subject-matter of demand is in its nature variable, examples are—all cases in which money is demanded in compensation for wrong sustained.
The demand either criminative or inculpative. Offence, suit and case, penal and purely public.
Heads under which the matter of a pursuer’s demand is to be stated, for the purpose of the judge’s determination whether to call upon any person, in the character of a proposed defendant, to comply with the demand or to contest it:—
I. Effective service demanded. This is the service which, in the event of his being proved guilty, will be rendered to the public, by the defendant’s being subjected to the punishment incurred by the collative fact No. III. in virtue of the collative law No. II.
II. Collative portion of law relied on. This will be the portion by which the character of an offence is given to a sort of act, in which the individual act charged upon the proposed defendant, as constituting the correspondent collative fact, is comprehended. It is termed collative, in respect of its being regarded as conferring on the pursuer, in behalf of the public, the right to the effective service demanded, as per No. 1.
III. Collative fact alleged.
This will be an individual act, charged upon the proposed defendant, as comprehended in one of the sorts of acts to which the character of offences is given by the collative law, No. II.
Collative with relation to the pursuer’s title to demand the effective service as above demanded by him,—it will, with relation to the burthen imposed upon the defendant by the obligation of rendering that same service, be onerative.
IV. Proposed defendant or defendants, with their several descriptions, as far as known or believed, together with the means of intercourse with them respectively, for the purpose of the suit, under their several and respective heads.
V. Sources of the evidence looked to, for the proof of the collative fact alleged as per No. III.; to wit, such persons, together with such writings, and such other things, if any, as the pursuer looks to in that character for support to his demand. The evidence itself will remain to be elicited at the hearing from those its several sources.
VI. Ablative facts negatived. Of any adequate ablative fact, the effect will be, in every case, to take away any right conferred by a collative fact. The affirmance of the non-existence of all such ablative facts must therefore be exacted, as well as the affirmance of the existence of a collative fact, as per No. III., and thence of a right to the effective service demanded as per No. I.
Ablative with relation to the pursuer’s title to the service demanded by him, these facts will, with relation to the burthen imposed on the defendant by the obligation of rendering that same service, be exonerative.
In the case of a criminal offence, collative circumstances will be—the several inculpative, criminative, and aggravative circumstances, belonging to the description of the act: ablative, the several justificative, exemptive, and alleviative circumstances. For exact lists of all these several sorts of circumstances, see the Penal Code.
VII. Counter-evidence, if any, from what sources expected.
Counter-evidence is evidence either in disproof of a fact which, with reference to the pursuer’s demand, is a collative fact, as per No. III.; or in proof of a fact which, with reference to it, is an ablative fact, as per No. VI.
VIII. Judicial service demanded. This will consist in the performance of all such judicial acts as will be necessary to the causing the collative portion of law, as per No. II., to receive, at the charge of the defendant, its execution and effect; and thereby the effective service, as per No. I., to be rendered.
The demand either criminative or inculpative. Offence, suit and case, penal, and publice-private.
Heads under which the matter of a pursuer’s demand is to be stated, for the purpose of the judge’s determination whether to call upon any person, in the character of a proposed defendant, to comply with the demand or to contest it:—
I. Private pursuer or pursuers, who.
Heads under which entries are to be made in relation to each:—
1. Sex.—2. Condition in respect of marriage, viz. whether, i. Never married; ii. Widow or widower; iii. Married.—3. Age. Time of birth, if not exactly known, according to conjecture; if exactly known, year, month, and day of the month.—4. Birthplace, whether within or without the territory of the state; if within, mentioning the district, subdistrict, and bis-subdistrict.—5. Occupation or occupations: profit-seeking, if any, what; so, official.
II. Means of intercourse for the purpose of the suit.
Habitation to which a mandate, or other message from the judicatory, may be directed with assurance of its being received; the habitation being identified as per Election Code. On every change, the information under this head will have to receive a corresponding change.
III. Public pursuer, on behalf of the public—the government advocate.
IV. Effective services demanded at the charge of the proposed defendant.
1. By the pursuer, as being the individual wronged,—satisfaction; to wit, for the damage occasioned to him by the wrongous act, which, with respect to the right to satisfaction, has become the collative fact, as per No. VI., having been constituted such by the collative portion of law, No. V.
For the several shapes in which, for damage received, from the several sorts of wrongous acts or offences, satisfaction will be obtainable, see the Penal Code, under the head of the several sorts of offences against individuals.
2. By the government advocate, in his quality of public pursuer,—the subjection of the defendant to the punishment incurred by this same act.
By the suffering produced by the infliction of the punishment, a service is regarded as being rendered to the public, by means of the tendency which the eventual fear of it has to prevent the commission of the like wrongous acts in future.
V. Collative portion of law relied on.
This will be the portion of law by which the character of an offence is given to a sort of act, in which the individual act charged upon the proposed defendant, as contributory to the corresponding collative fact, as per No. VI., is comprehended. It is termed collative, in respect of its conferring on the respective pursuers, as per Nos. I. and III., the right to the respective services, as per No. IV.
VI. Collative fact alleged.
This will be an individual act, belonging to one of the sorts of wrongous acts spoken of under No. IV., and as being constituted offences by the collative portion of law, as per No. V.
Collative with relation to the title of the pursuers to the service, respectively demanded by them,—it will, with relation to the burthen imposed on the defendant by the obligation of rendering these same services, be onerative.
VII. Proposed defendant or defendants, with their several descriptions, as far as known or believed, together with the several means of intercourse with them respectively for the purpose of the suit, under the several heads in No. I. and II. mentioned.
VIII. Evidence looked to, in proof of the collative fact, as per No. VI.
Under this head will not be to be entered on this paper anything besides the sources of the evidence known, or supposed to be obtainable; to wit, such persons, together with such writings, and such other things, if any, as the pursuer looks to in that character for support to his demand.
The evidence itself will remain to be elicited at the hearing from those its several sources.
Notes to Demand-Paper A.
[Sources of Evidence.] On the evidence which will have to be adduced, will depend the belief of the judge in affirmance of the existence of the collative fact or facts, of which the applicant’s title, on the ground of fact, to the services demanded by him, is composed. In relation to this same evidence, among the questions which, in that view, the pursuer will have had to put to himself, and whereby, in so far as he has failed so to put them to himself, the judge will have to put them, are the following:—
1. Questions as to personal evidence. What person or persons are looked to, as able and willing, or capable of being lawfully made willing, in quality of testifier, to prove the existence of the collative fact or facts? In particular—1. The applicant or applicants? 2. The proposed defendant or defendants? 3. Any other person or persons? or any mixed assemblage, composed out of the three sorts of testifiers, whereof the two first will in such case be litigant, the others extraneous, testifiers or narrating witnesses?
2. Questions as to real evidence,—to wit, as to any state of things, unmoveable or moveable, to which it may happen to be capable of operating in the character of evidence, or proof, or explanation of a collative fact. The things, what and where; present possessors or keepers, who? In particular, the applicant or applicants—defendant or defendants—or third persons, as above? Note that, in respect of any appearance his body exhibits, a person may, as well as a thing, constitute a source of real evidence: a person, for example, on whose body the mark of a wound or bruise is visible.
3. Questions as to written evidence. Written evidence is a sort of compound evidence, composed of personal and real. To the questions, Who the persons are of whose discourse the writing is composed? will accordingly be to be added the question, Who the persons are in whose possession or keeping the portions of discourse in question are.
Of this note on the subject of evidence, the matter will be seen to apply, not less to the Demand Paper A, than to all the several others.
[Ablative facts.] By some one article in the list of the facts constituted collative facts with relation to the right or title of a pursuer (standing in the individual situation of the pursuer in question) to receive the services hereby demanded, must such his right or title have been conferred: by any one article in the correspondent list of ablative facts, it may have been taken away. Therefore, of all such ablative facts, the existence must of necessity be negatived by him.
Case 1. Suit simply requisitive.
Of the proprietor of a mass of property, the death operates as a collative fact in favour of each of his postobit successors: as a collative fact, to wit, with relation to the right to the service rendered by the judge, by making a division of the mass among such successor and his co-interessees, and thereupon giving to him his share. Examples of an ablative fact are—1. A release by any one such co-interessee in favour of the rest, or any one of them; 2. On the supposition of the deceased’s having a correspondent right, exercise given by him to any ablative power, divesting this or that one of them of his right to any such share.
Notes to Demand-Paper B.
[Inculpative, but not criminative.] In this case will require to be included the case which, in Rome-bred law in general, and in Bonaparte’s Civil Code in particular, is styled that of a Quasi-delictum—Quasi-délit, Cod. Civ. L. III. Tit. IV. Ch. II. Art. 1382 to 1386, p. 217. This is the case where, without any default of his own, a person is rendered responsible for damage—having for its efficient instrument some person for whom, or some thing for which, it is in such case thought fit to render him responsible: the person regarded, as being in some sort in his power, and the thing completely so.
In this case, though it may be that by no care on his part could the damage have been prevented, yet after the damage had taken place, he might have made or tendered compensation for it; and in this way it is, that though not criminal, his conduct may, perhaps not unreasonably, have been deemed culpable.
Under English law, the demand in a case of this sort is what is called an action on the case.
[Effective Service.] Warning against excess in the quantity or value of the effective service demanded.
1. Whatsoever, in a case of this sort, be the subject-matter of the demand, it will be for the joint care of the pursuer and the judge so to adjust the description given of it, that in case of non-compliance, non-attendance, and non-reparation on the part of the defendant, an execution-ordering mandate issued by the judge, may, without other description than what is so agreed upon, suffice to put the pursuer in possession of it. If for want of sufficient information respecting the facts belonging to the case, the pursuer cannot take upon him to fix the amount, let him write in the appropriate space the words, “not yet ascertainable: remains to be ascertained from the evidence.”
2. If, although the demand be, in respect of the collative fact, well grounded, the amount of the subject-matter demanded is, in respect of quantity or assigned value, manifestly excessive, the pursuer will be compensationally and punitionally responsible, in consideration of and according to the amount of the excess: the demand being to this amount ungrounded, and the exaction of the service having the effect of oppression and extortion.
3. By appropriate interrogatories, it will be the care of the judge to bring the statement respecting quantity and value to such a degree of correctness as may warrant his giving possession to the demandant, in the event of non-compliance on the part of the defendant, after an appropriate mandate received by him.
4. From the defendant’s counter-statement, should any ensue, it will appear what is the object of his contestation: whether it is the applicability of the alleged collative fact, or only the quantity or value assigned to the subject-matter of the demand.
[Counter-Evidence, if any.] The pursuer,—does he know of any—can he think of any evidence, the tendency of which may, either in his own opinion, or, as he believes, in that of a defendant, be to weaken the opinion supported by the evidence adduced by himself, as above?
If any such counter-evidence exists, the earlier the mention of it is exacted, the better—the better for the parties on both sides. By the requisition thus made of it, the eyes of the pursuer are thus of necessity turned to the state of the case as it must have presented itself to the other side; and by the comprehensive view thus taken, the ulterior vexation and expense of the suit may be saved to himself, as well as the whole of it to the defendant, after being thus interrogated.
If, knowing of any such counter-evidence, he omits to furnish indication of it, the omission will be circumstantial evidence of evil consciousness; and, in addition to other evidence, will of itself constitute sufficient ground for a dismissal of his demand: and it may moreover be punishable in the character of a separate and substantive offence; to wit, falsehood, mendacious or temeracious, as the case may be.
To counter-evidence, apply of course the same distinctions as those which as above have place in the case of evidence.
The facts to which the counter-evidence applies, may as well be those which, with relation to the pursuer’s title, bear the relation of ablative facts, as those which bear to it the relation of collative facts. If they are collative facts, the tendency of it will be, either to disprove in a direct way the existence of them, or to cause to be regarded as unreasonable the inference deduced in affirmance of them from the evidence on that side: if ablative facts, the tendency of it will be to prove the existence of those same ablative facts.
[Counter-demand, if any.] Reasons for inquiry under this head, are the same as in case of counter-evidence. Sub-heads for inquiry, the same as in the case of the demand, as above.
[Judicial Service.] Under this head will be comprised whatsoever chain of operations may be necessary to be performed by the judge, ere the effective service, or some succedaneum to it can have been rendered to the pursuer. These operations, or elementary judicial services, as they may be called, will be the result of the exercise given to the several distinguishable functions brought to view in the Constitutional Code, Chapter XII. Judiciary, Section 9, Elementary Functions;—the last link in the chain being constituted by the exercise given to the imperative function, by means of the mandate or mandates by which execution and effect is given to that portion of the law, which the pursuer’s demand has in this case for its ground. To bring to view these operations, in all the varieties of which they are susceptible, will be the occupation of the remainder of this same Procedure Code.
[Ablative Facts.] In the case of a wrong,—an inculpative fact on the part of the proposed defendant, (thence a collative fact, with relation to the pursuer’s right or title to satisfaction at his charge), is an act of the sort of these which, by the law in question, are constituted offences, unless accompanied by some one of the circumstances included in a correspondent list of justificative or exemptive circumstances. If any such ablative fact has place, his title to the service in question has no place. If of any such ablative fact the existence be known to him, he is in a state of evil consciousness with relation to his demand—consciousness of the invalidity of it, and of the groundlessness of the vexation he is seeking to impose on the defendant; and this state of evil consciousness as to the application he is making, involves in it an act of insincerity, for which he may as reasonably and beneficially be punished, as for mendacious evidence in relation to any external and physical fact. As to this matter, see what is said in relation to counter-evidence.
[Proposed Defendant,] to wit, the person at whose charge the services, effective and judicial, are demanded—who would be the sufferer by their being rendered—and who accordingly, by a corresponding interest, is urged to oppose their being rendered. To the pursuer, this person may be either known or unknown: if unknown, the application cannot as yet be anything but informative; contentious it cannot be termed, unless and until, by means of appropriate arrangements taken by the judge for the discovery of the person, a contestation with him is commended. The case in which he is thus as yet unknown, will most commonly be a penal one, that being the sort of case in which, with a degree of force correspondent to the magnitude of the suffering produced by the obligation of rendering satisfaction—or by the punishment liable to be undergone, or by both as the case may be—his interest will be urging him to keep himself from being known. By accident, however, this latentcy may have place in a case where the suit is simply requisitive, as to which, see Demand Paper A; as also, in any case, whether inculpative or not, in which, by the contemplation of the inconvenience attached to the fulfilment of the obligation endeavoured to be imposed upon him, he is prompted to evade it.
Note to Demand-Paper D.
[Evidence.] In a penal case, whether the offence and the species of suit are, as here, purely public, or whether they are publico-private as in the case of the Demand Paper E, the evidence will commonly have three distinguishable subject-matters; to wit—1. The matter of fact, or state of things, regarded as productive, or tending to be productive of mischief, and supposed to have been the result of the act of some human agent; 2. The nature of that same act; 3. The personality of that same agent.
Of these three distinguishable subject-matters of knowledge and evidence, the first may be known, while the second and third are as yet unknown: of damage produced by conflagration, the existence may, for example, be known, when, as yet, it is not known whether human agency bore any part in the production of it. So again, the damage being known, what may also be known is, that human agency, the act of some person, had part in the production of it, while as yet it is not known who that person is.
In Rome-bred law, the state of things regarded as fraught with mischief, with the circumstance of its having had human agency for its cause, constitute together what is called the corpus delicit—in French, corps du délit, the body of the offence; and are frequently spoken of as composing a subject of evidence and investigation, distinct from the consideration of the personality of the supposed criminal, or culpable agent.
This distinction may also have place, in several modifications of the case, in which, as in Demand Paper B, the suit, whether inculpative or not, is not criminative.
Pursuer’s demand, how amendable.
As in this stage, so in any subsequent one, the ground of the demand, as stated by the pursuer to the defendant, may at any time be changed, and so toties quoties. At this stage it is producible in the case where, at the time of his application, the pursuer adduces and has obtained the examination of an extraneous witness.
If the case be such, that the pursuer in his situation might have foreseen the superiority of aptitude on the part of the second, or say amended ground, in comparison of the original ground, he will be compensationally responsible to the defendant for any disadvantage by the change produced to him in respect of any of the ends of justice: if not, the burthen must rest upon the defendant uncompensated.
Of amendments of this sort, the need has its principal source in the variations which, with or without evil consciousness, or even temerity, may have place, and are continually having place, between any account that may have been given by a witness to a pursuer extrajudically, and the account given by the same witness judicially, while under examination.
Various are the causes by which such variance is capable of having been produced, such as—
1. Difference in respect of the sense of responsibility between the one occasion and the other. On the extrajudicial occasion, responsibility in respect of verity, none; and on the other occasion, the responsibility maximized. This cause is the most powerfully operative, and accordingly the most obvious.
2. Difference between the state of the memory on the one occasion, as compared with the other. Here comes in the operation of two antagonizing causes. On the first occasion, the recollection being in its freshest state, is naturally more clear, correct, and vivid. But on the second occasion, the demand for the operation of recollection having intervened, the attention bestowed will naturally have been more intense, and by this means any deficiency, which for want of attention may have had place in the statement made on the first occasion, may have received supply.
Here, by the bye, may be seen how vast the importance of the avoidance of delay may be, and commonly will be, in reference to the direct, as well as to the collateral ends of justice. By every day of unnecessary delay, addition is made to the probability of ill-success to him who is on the right side; to the probability of good success, to him who is on the wrong side.
The points in relation to which the need of such amendment may have place, are the following:—
1. Ground of the demand, in point of law, as per Table of rights and Table of wrongs, and the chapter and section of the code to which the case belongs.
2. Place at which the fact in question happened.
3. Time at which the fact in question happened—at which the state of things in question had place—at which the act in question, positive or negative, was performed.
Commencement of suits—English practice.
The establishment of eventual forthcomingness and responsibility, on the part of applicants, will be seen to be a business of no small intricacy and difficulty, when provided for, as it must be, on an all-comprehensive scale. It is a business for which, under the current systems, there is no demand, and which, to those whose whole experience and attention have been confined to those systems, will be apt to appear superfluous, and no less trifling than troublesome. The defects of those systems under this head have two causes, varying according to the nature of the case:—
If the suit be a non-penal one, no person is received to state his case in his own person, unless it be with a professional assistant at his elbow: in England, in particular, matters are so ordered, that while, by the instrumentality of a professional assistant, any person may institute a suit of this kind against any person for anything, or for nothing at all,—no person, even if by miracle he could, without that instrumentality, contrive to institute any such suit, could even by any such miracle institute it in the presence of the judge. In England, in particular, the judge keeps open a shop, at which, on payment of a fixed sum, without so much as supposing himself to be in the right, any man may purchase the assistance of the judge, towards ruining any other man; the judge by purposed ignorance, escaping from all responsibility for the misery to which he gives birth, and from which he profits. As the party cannot thus buy his chance for justice, otherwise than by the hand of a professional assistant, the lawyer will not lend his assistance, unless, in his view of the matter, he has sufficient security for the costs, his own pay included; and thus all such trouble as that of inquiring into the circumstances of customers is saved to the judge.
To lawyers of all sorts and sizes, thus is convenience maximized. To non-lawyers the consequence is, that he who has not wherewithal to pay for a ticket in the justice lottery, in the character of plaintiff, goes to a certainty without justice; and in this situation are at least nine-tenths of the whole population; while, in the character of defendant, he who cannot pay the costs of defence, is, in every instance, between plaintiff and lawyers, consigned to complete and certain ruin, without possibility of escape. The judge, having taken care to know nothing about the matter, being thus as completely guiltless of the misery he has produced, as a murderer would be of murder, by shutting his eyes while the bullet was doing its office.
In a penal case, the matter stands on a different footing. Judges themselves could not save themselves from having their houses broken open, if the applicants were not received, as indiscriminately as here proposed, to give information respecting the most highly punishable class of criminal offences. But here, too, the judge of the highest rank make, his escape from responsibility and trouble in every shape: the troublesome part of the business is committed to an underling, who may be occupied about it for days, while a small part of the day is all that is occupied by the great judge, matters having been brought into preparation for that purpose.
Meantime, not small is the degree of convenience provided for the underlings. If the individual accused by the information given, is one whom nobody knows,—the information being upon oath, the oath is sufficient warrant for immediate incarceration, without any such trouble as that of an inquiry into the trust-worthiness of the informant.
But now, suppose the individual accused to be one whom everybody knows. In this case, there is no degree of solicitude but what will naturally be employed in the inquiry into the trustworthiness of the informant.
Judication without audition, Anglicé—its absurdity.
If, without knowing or hearing a word about the disorder of the patient, the physician were to pour down his throat a dose of physic, or the surgeon lay hold of him and bleed him, they would do exactly what, in cases called civil ones, the legislature and the judge do, in the first instance, by the defendant at the commencement of a suit under English law. What they have never cared about, is how much the party will suffer from what is done: what they have always cared about, and what is all which at any time they have cared about, is the money and the power: the money they thus receive, and the power they thus exercise.
Under the English system, in those judicatories which are called common-law courts, in contradistinction to equity courts,—if the defendant fails as to the contesting the demand in proper form, the plaintiff obtains in his favour what is called a judgment; but a judgment on which, without a further proceeding, under which the evidence belonging to the case is elicited, nothing can be done. This proceeding is performed in virtue of what is called a writ of inquiry: the judge being, not the judge of the judicatory in which the suit was begun, but a subordinate functionary called the sheriff, by whom, had the inquiry been made in the presence and under the direction of the judge, simple execution would have been given to the judgment then pronounced.
This lot of factitious delay, vexation, and expense, has for its cause what may be called the judicial-ignorance-maximizing principle, or thought-saving principle,—that principle which has for its object the giving to the judge his profit out of the suit, with the least expense possible on his part, in the articles of time, labour, and thought. Of the number of the suits of which in a twelvemonth the judge by his signature pretends to have taken cognizance, only in the case of some small proportion has he, from first to last, known anything at all about the matter; and thus, in the great majority of cases, the money exacted by the judges (for five is the number of those employed in doing nothing or worse than nothing) is so much obtained on false pretences: an offence punished in the case of mean evil doers, and punished by those same judges, with what is called transportation for seven years,—that is to say, banishment and confinement to hard labour for that time.
Go to a common-law judicatory, you thus get decision without thought and without effect. Go to an equity judicatory, you get thought, or at least prate, without decision: prate in plenty, with years of delay between prate and prate. Thus has it been now for more than twenty years past, ever since the country has been afflicted by Lord Eldon.