Front Page Titles (by Subject) CHAPTER XIII.: DEFENCE, HOW ELICITED. - The Works of Jeremy Bentham, vol. 2
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
CHAPTER XIII.: DEFENCE, HOW ELICITED. - 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.
DEFENCE, HOW ELICITED.
Modes or shapes.
Complication will be here presenting itself in appalling abundance. The best remedy, imperfect as it cannot but be,—carelessness would join with unscrupulous hostility in denouncing as the cause of the disease.
Parties, each at the same time, pursuer and defendant, one or more in every judicial territory: to each party a swarm of witnesses. Such is not only the conceivable but possible nature of the disease: happily, it is not a frequently exemplified one.
As to the here proposed system, so far from creating additional evil in the shape of misdecision, delay, expense, or vexation, it provides new and manifestly efficacious securities against evil in all these several shapes. These are—to wit 1. The universally-extending responsibility in case of falsehood; 2. The universal exposure to subsidiary oral, after epistolary examination.
To English practice, neither do these, any more than any other class of cases, ever present the smallest difficulty. Be the gordian knots ever so complicated and ever so numerous, in the hand of chicane is a sword, by which difficulty in every shape is cut through without difficulty. Whatsoever statements, demandative or defensive—whatsoever evidence the nature of each case calls for—all are elicited in one or other of the two most deceptious, most untrustworthy modes that human ingenuity could have divined:—affidavit evidence and secretly-elicited responsion to a system of interrogatories framed in the dark; and epistolary responsion, incapable of being followed and purified by oral interrogation;—modes having for their object the sinister emolument of their contrivers, and for their instrument a galaxy of perjuries. When the division of the sweets commences, in the place of creditors, come in the two classes of self-created harpies, the judge in all his forms, and his instrument and dependant the professional lawyer in all his forms. The filth of the harpy finds, in the mixture of mendacity and absurdity poured forth from their lips and from their pens, its not unworthy representative: the money they fly off with—the defiled paper and parchment they leave in lieu of it.
As to parties, witnesses, and their sufferings, the same sort and degree of regard do they find in the breast of the authors, as do those of the negro in that of the planter—those of the Hindoo in that of his English proprietor—those of the Irish Catholic in that of the Orangeman—those of the non-religionist and rival religionist in the imagination of the religionist. Sufferings, which a man neither feels nor sees, cannot be too great: as to those which are seen by him, by some they are seen with pain, by others with indifference, by others again with delight.
Where, having nothing to gain by deviation from any of the ends of justice—nothing to gain by misdecision, delay, vexation, and expense, and at the same time everything to suffer from it at the hands of the legal and public-opinion tribunals, with the light of publicity shining in full splendour upon his every word and action,—it were strange indeed if more were not done by the judge towards lessening the evils opposite to the ends of justice, than if motives for the endeavour to lessen them were altogether wanting;—still stranger if more were not done by him than can reasonably be expected to be done by judges whose interest it being (for such their predecessors have made it) to maximize the mass of those same evils, it has of course been a constant object of their endeavour,—the end in view of all their operations.
Thus circumstanced, under the English system, have been the whole hierarchy of the judges of the higher order: subject only to here and there a slight and narrow amendment at the hands of the acknowledged legislature (of which they were all along themselves the oracles,) the system of procedure has always been under their direction, in the double capacity of effective legislators and judges: judges applying the law—that very law which, on pretence of declaring it, for this is the cant word, their predecessors and they themselves have all along used,—declaring that to have existence, which even in and by this very declaration, is declared not to have been made by anybody. Not by the legislature: true; and thus much must be allowed, though it is they who say it. But, according to them, neither is it by themselves that it is or has been made; though, if not by themselves, by whom else can it have been made?
In the whole system may be distinguished, for this purpose, three chief modes of procedure: the common-law civil, the common-law penal or criminal, and the equity mode. In no one of them (except for the purpose of lucrative contribution) is any real regard actually paid to the direct ends of justice: in no one of them, in the regulations established, is any regard so much as professed, or pretended to be paid, to the collateral ends of justice.
Bribe-taking, which is out of the question—bribe-taking is never practised, it not being safely practicable: not being imputed to them, how is it, it may be asked, that they are gainers by misdecision? The answer is,—in one vast class of cases, one gain they can make, and at all times have made—by favouring a party which it was their interest to favour—and that is, in causes in which government takes an interest in the side on which government is—that government of which they themselves are such actively efficient and highly interested members.
But as to the practice of misdecision, another interest they have, which, though not so manifest, is much more extensive in its application and operation than that just mentioned. This is, the effect of misdecision in the production of uncertainty. It is on the uncertainty that they depend, in a great measure, for the whole assemblage of their insincere, their malâ fide customers, so far as regards the question of law. Were the state of the law known to all, no one, unless on the ground of knowingly false evidence, would venture to institute an illegal claim, or defend himself against a legal one. But having so arranged matters, that he who is rich enough to pay the price is sure of success against all those whose pecuniary means are to a certain degree inferior to his own, the greater the number of chances of success which, by the adjective law of their own creation, they have given to those against whom the substantive branch of the law has expressed itself, or has been thought to express itself, the greater the encouragement for them to engage in a groundless and unjust pursuit, or in a groundless and unjust defence, as the case may be.
This policy of theirs has, as it were, betrayed itself by an expression which could not be prevented from growing into use: this is that in which the ground of decision has been distinguished into two modes; decision according to the merits, and decision not according to the merits. Now as to these two, the expression in cases decided otherwise than upon the merits, may serve for indication of all the cases in which, either for an individual benefit in the shape of corruption, to the individual judge then deciding, or for the aggregate benefit of the profession,—misdecision has been exemplified—injustice knowingly and wilfully committed. Decision otherwise than on the grounds of the merits is, in other words, decision on technical grounds. The decision on technical grounds will, so long as it remains, remain a permanent and inexhaustible spring of safely commissable, and committed injustice: for the technical rule being palpably repugnant to justice, the judge at all times has for choice, the choice between adhering to the unjust rule, and so favouring the one side, or departing from the rule, and so favouring the other.
In the common-law mode, to wit, in the case of jury trial, all the witnesses on both sides are brought together at once, at the same hours on the same day, and thus the maximum of dispatch, it may be alleged, is secured. But supposing this to be the case in general, no advantage would be given by it over, and in comparison with, the here proposed mode. Why? Because, in every instance in which the end is really the end conducive to justice, it may, and naturally will, be employed in the here proposed mode; whereas, whenever that at present established mode is not conducive to, but opposite to, the ends of justice, be the opposition ever so strong, it cannot but be employed.
In the established mode, the interval of time between the commencement of the suit and the delivery of the evidence, must be that which is necessary to let in that piece of evidence, the elicitation of which will require the largest portion of time: and during the whole of this largest portion, all those pieces of evidence which might have been elicited in smaller portions of time, must remain unelicited. One consequence is, that the greater the portion of time, and the greater the number of witnesses whose testimony is requisite, the greater is the probability of the deperition of evidence: of a result, by which injustice may be inevitably and irremediably substituted to justice.
Effects and fruits, the causes of this regulation, many, for Judge and Co.: money obtained on some occasions, some of it on grounds which may be true or false as it happens; on others, by pretences which are constantly and certainly false. On some occasions, on application made, order for enlargement follows of course. In these cases, what is done for relief of the party, is done by Judge and Co. for money obtained by them on false pretences. The act pretended is an application made to the judge: of no such application, individually taken, does the judge ever hear: parties to the fraud, the attorney who instructs the barrister to make a motion—i. e. an application to the judge—and the barrister who pretends to have made it. By this fraud, 10s. 6d is gained by the barrister, somewhat less by the attorney; the barrister writing his name for the money, the attorney having previously written a few words more. By this fraud, which the suitor is made to pay for, he is saved from the burthen, whether of compensation or punishment, which otherwise would be imposed upon him by the judge; the judge, by the fear of that burthen which otherwise would to a certainty be imposed, extorting from the suitor the money thus thrown by him into the hands of these his partners.
In the judicatories which act under the name of equity, this union of fraud and extortion is at the same stage of the suit repeated once or twice, as a matter of course.
In one particular, all these modes agree: for every operation, by whomsoever performed, an allowance of time is fixed by general regulation. By this generality, a negative is thus put upon the very idea of having any regard to the convenience of any one individual on either side. In each individual suit, the chances are as an unlimited number to one, in favour of injustice, to the damage of one side or both: if it is too short, the party who is in the right has not time enough to do that which is necessary to the manifestation of his right; and here comes the injustice which is opposite to the direct ends of justice: if too long, i. e. longer than is necessary for the manifestation of his right, here, by the amount of the excess, comes delay—delay to the prejudice of the collateral ends of justice: and from delay comes vexation, with more or less probability of expense.
When on any special ground, true or false, more delay is desired, money in much greater abundance is extorted. An application to the judge is really made: evidence to support the allegation—a mass of written evidence, is tendered to his cognizance: the evidence is penned, not by the individual—him whose statement it contains—but by an attorney by whom it is licked into a form deemed suitable to the occasion and the purpose: along with this evidence, goes an account of it—a sort of comment on it, drawn up likewise by the attorney. This comment is called a brief, and is delivered to the advocate. The application thus made may be opposed by a counter-application from the other side, drawn up in the same manner; and thus, out of the belly of the principal suit, is bred an incidental one.
Even within the bounds of the kingdom of England, not to speak of united kingdoms and distant dependencies, the distance of the abode of the suitor from the judgment-seat, varying from a few feet to little less than three hundred miles,—from this circumstance may be formed a judgment what sort of regard in the establishment of these time-fixation rules, was paid to the convenience of the people in quality of suitors, and of what sort was the motive which in the establishment of them constituted the final, and thence the efficient cause.
The demands for postponement being throughout the process multiplied partly by nature, partly by ingenious industry, and under the name of vacation, vast intervals of relative inaction having been most impudently established—suits in unlimited abundance are thence to be crowded by regulation, into spaces of time incapable of holding them: suits are thus put off, from year to year, every interval being a gulf in which the fortunes of the least opulent of the contending parties is swallowed up: iniquity being triumphant in the person of the most opulent.
For the sowing of these regulations, the seed of which all the money was the fruit—the originally-looked-for and continually-gathered fruit—it was necessary to prepare the ground. The grand operation by which this preparation was effected, was the regulation by which the parties on both sides are in every possible case kept as far as possible excluded from the presence of the judge.
Suppose the applicant in his presence,—to the extent of his knowledge and belief, any matter which presents a demand for consideration for the purpose of the suit, may be extracted from him at that one hearing; and thus a plan of operations for the conclusion of the suit, with the greatest probability of rectitude of decision, and with the least delay, expense, and vexation, may to the best advantage be formed at this early stage, which by this means will in many instances be made the last stage, and in many more the last but one.
Here would have been the maximum of appropriate knowledge—of the knowledge of those things, the knowledge of which is necessary to justice. Shutting the door against this salutary knowledge, the contrivers of the system, by this one operation, flagitious and daring as it was, endowed themselves with that ignorance—that happy, because thenceforward necessity-begotten, and thence irreproachable ignorance—which presented an excuse and served them as a veil for all the depredation and oppression which was the fruit of it. For the exigencies of individuals no provision was thenceforward made. Why not made? Because the knowledge of them was not possible. And why not possible? Because, by these judges themselves, care so effectual had been taken so to order matters as to prevent it (and that so long as the system founded on in it lasted) from being possible.
Defence, how procurable.
Generally, the place of defendant’s accersition and examination will be the originating judicatory.
This, exceptions excepted, will be at applicant pursuer’s choice. But restrictions are necessary to prevent overloading.
Reason 1. Certainty of it being the most convenient to
2. Not certain its being less so to any one else.
But only in one can the suit be terminated. Thence, special preponderant inconvenience excepted, the best is the originative.
Sole reason for transfer, incidental or definitive, to a post originative judicatory,—diminution of delay, expense, and vexation, attendant on the accersitee's [Editor: ?] journey and demurrage.
From this the danger of misdecision would not be diminished but increased.
Causes of increase of delay, expense, and vexation in this case:—
1. No day for defendant’s next attendance could be appointed by the judge originative: for the first could not know when the second would have relative leisure.
2. No day, till in consequence of a correspondence between him and the judge post-originative.
3. No determinate information could be given to the pursuer, as to the time of defendant’s statement and testimony in this case.
Nevertheless power to judge originative to make transference, incidental or definitive, to a judge post-originative, for special reason, referring to delay, vexation, and expense.
When the party addressed is not adducted or accersed to the original judicatory, if oral statement or evidence is required (domiciliary or topographical excepted,) it must be at another, say a post-originative judicatory: pro tanto, here then will be transference.
Hence unavoidable addition to delay, vexation, and expense—especially in case of retromission.
Cause and measure of the increase: distance between the judicatories.
Cause of multiplication: multiplicity of persons accersible, whether defendants, copursuers, or witnesses.
Judge of the originative judicatory cannot make known the earliest time of relative leisure in another, as in his own judicatory, and not at all without previous correspondence.
For obtaining statement and evidence, where the parties are many: the most eligible mode, epistolary backed by subsidiary oral.
The subsidiary may be either—1. On the original inquiry; or, 2. Reserved for the recapitulary ditto.
The defendant not being at the time in question present in the judicatory, the epistolary is the only mode which, in the first instance, the nature of the case admits of; to wit, by missives sent to the defendant from the judge. Remains for consideration, in which mode the defendant shall, in the first instance, on receipt of such missive, address the judge. If in the oral mode, it will be by attendance at the judicatory.
Where the originating judicatory is the judicatory of all parties on both sides, the mode of subsequent judicial intercourse will be the oral mode.
The epistolary mode is the most conducive to the collateral ends of justice in the following cases:—
1. Expatriation; 2. Subsequent judicatory too distant for accersition to the originative.
When a day is fixed for the defendant’s attendance at the judicatory,—required by the mandate in the meantime, if the time admit, will be—
1. A defendant’s response paper, promising attendance on the day prescribed, or making excuse as to the day, and offering attendance on another day therein mentioned.
2. A defence paper, in a form correspondent to that of the demand paper.
Evidence self-serving, or self-disserving, or both together, to be delivered in the epistolary mode, will at the same time be called for, or not, as to the judge may seem most conducive to the ends of justice.
Of the matter thereupon received from the defendant, communication will be made by the judge, if time admit, to the pursuer or pursuers, that on the mutual hearing, he or they may be better prepared.
Examples of the matter of the appropriate response at the maximum of simplicity, are—
1. Defendant’s acknowledgment or denial of a document purporting to be his, whether in his handwriting or not.
2. Ditto of a statement supposed to be orally uttered by him.
3. Ditto of the receipt of a missive.
4. Ditto of a death with circumstances, as per demand paper.
5. Ditto of a birth with circumstances, as per ditto.
Defendant’s attendance—its uses.
Of a defendant’s, personal attendance at the judgment-seat, among the purposes or uses are the following:—
I. Uses to the Pursuer’s side:
1. Furnishing appropriate confessorial evidence.
2. Furnishing indicative evidence of ditto.
3. Furnishing information of means of effective responsibility at his charge, satisfactional or punitional, or both, as the nature of the case requires and affords.
4. Furnishing means of co-enduring accessibility on his part for the purpose of the suit.
II. Uses to his the Defendant’s side:
1. Furnishing his own appropriate self-serving evidence, if he has any.
2. Furnishing indicative evidence as to expected extraneous appropriate evidence, expected to be in his favour, and obtaining mandates for the elicitation of it; to wit, either contesting the pursuer’s collative facts, or establishing facts which, with reference to his title, are ablative.
3. Furnishing the opportunity of applying counter-interrogation to the pursuer, in respect of his self-serving evidence.
4. Furnishing an opportunity of eliciting the pursuer’s response to his (the defendant’s) counter-demands, if any such he has: and his own self-serving evidence in support of them.
5. Furnishing to the defendant an opportunity of eliciting the evidence of the extraneous witnesses attending on his side, if any such there be.
6. So of counter-interrogating the pursuer’s extraneous witnesses, if any such there be.
III. Uses to both sides:
1. Furnishing to both the faculty of settling, for ulterior proceeding, the course most convenient to both.
2. Faculty of receiving and profiting by any such advice as, for their mutual benefit and that of the public, the judge may see occasion to give.
3. In particular, receiving from him any such information and advice as may guard them against the propensity and endeavours of professional assistance to add to the unavoidable expense, vexation, and delay, factitious ditto, for the sake of the profit upon the expense.
4. Obtaining relevant testimony, without being dependent for it on the good will of the percipient witnesses, or other persons capable of yielding it.
Note here, how favourable this means of mutual explanation is to the interests and desires of the sincere—how adverse to those of the insincere suitor, on both sides; thence how adverse to the sinister interest of professional advisers and assistants, by proportionally depriving them of the custom of the persons who would otherwise be insincere litigants.
Hence the cause why, in all systems of procedure, more or less, endeavours so anxious and successful have been employed in keeping the parties from coming into the presence of each other, together with that of the judge.
To be considered at this stage as to communication for the judicial purpose, are—Ends to be aimed at, and the nature of the suit.
1. Persons to be communicated with.
2. Purposes for which they may be respectively to be communicated with.
3. Communicaters or addressers,—persons by whom, for those purposes respectively, communication may require to be made.
4. Addressees,—persons to whom the several communications may respectively require to be made.
5. Operations which on the occasion of the several communications may require to be performed for those several purposes.
6. Instruments, or say written forms, which for the performance of those several operations, may respectively require to be issued.
7. Correspondent considerations in regard to things moveable and immoveable.
Persons who, for judicial purposes, at this stage may need to be communicated with:—
1. Pursuer’s co-interessee or co-interessees, on his side as proposed co-pursuers.
2. Proposed witness or witnesses on pursuer’s side.
3. Proposed defendant or defendants.
Purposes as to proposed co-pursuers:—
1. Delivery of their demand paper.
2. Settling with each other the proposed purport and tenor of those their demands.
3. Settling with one another and the judge what next course shall be taken as to communication with proposed pursuer’s witnesses and defendants.
4. Settling who to apply to as proposed witnesses.
5. Settling the most convenient mode of communicating with them for that purpose.
6. Settling whether, as to the defendant, any and what means of preliminary security are necessary.
Note, that of any such co-interessee and proposed co-pursuer, the existence is matter of accident, and in most instances will not have place.
Proposed witness, viz. such only whose capacity of testifying is supposed known to original pursuer or co-pursuers.
1. Sending to him a witness’s attendance mandate; or else,
2. A witness-examination mandate.
3. Receiving from him in either case a witness’s compliance announcing response.
4. Or a witness’s excuse paper; or,
5. A witness’s testificative response; or in case of attendance,
6. Receiving him, and examining him on his attendance.
7. In case of necessity, causing him to be prehended and adduced for the purpose of examination; to wit, by a witness’s adduction mandate, delivered or sent to an appropriate functionary—a prehender.
By proposed witness, understand also holder of written or other real evidence, required to be adduced or transmitted.
Proposed defendant—say one.
1. Sending to him a proposed defendant’s compliance, or defence and attendance-requiring mandate.
2. Receiving from him a compliance-announcing response; or,
3. A defence paper, with an attendance-announcing response; or,
4. A defendant’s excuse paper.
5. Receiving and examining him on his attendance.
6. In case of his being examined in the epistolary mode—in addition to his defence paper, his defendant’s testification paper.
7. In case of necessity, causing him to be prehended and adducted for the purpose of examination by a defendant’s adduction mandate, delivered or sent to a prehender, as above.
Whether it be the effect to be produced and the operation to be performed, ultimate execution to be given to the laws, and service demanded thereby rendered—preliminary security to be afforded—counter-security to be afforded—testimony to be elicited;—and for all these several purposes, intercourse with justiciables and judicial functionaries commenced and carried on,—the endeavour of the judge will be to combine with the maximum of efficiency and the maximum of promptitude (or say the minimum of delay,) the minimum of vexation or afflictiveness, including the minimum of vexatious expense.
Cæteris paribus, that mode of operation which is most prompt will be least afflictive. To the pursuer’s side it will manifestly be most beneficial. So likewise to the defendant’s side, except in so far as by delay in respect of the rendering the service due, he is served at the expense of the pursuer and of the interest of the public in respect of justice.
Middle agency the judge will take care not to employ without necessity. By every middle agent unnecessarily employed, chance of ultimate failure is increased—delay certainly increased—and either vexation to the agent, or expense in satisfaction for it, increased.
In particular, where, to the loss of any person—a defendant for example—property is to be transferred, he will make graphical transfer of it with his own hand, without compelling the defendant to be instrumental in the transference or conveyance. Compulsion may be necessary to produce disclosure: it cannot be to effect graphical transfer.
Of the options which the judge will thus have continually to make, he will all along give the reasons. In particular, where of divers courses for efficiency, he holds himself obliged to employ the most afflictive.
Having obtained from the applicant the appropriate grounds,—before the termination of the first hearing, the judge will have determined, as far as may be, and communicated to the applicant the particulars of the ulterior course.
In case of retention, he will in the first case determine whether any and what preliminary measures of security are requisite to be taken, according to the nature of the suit, for securing execution and effect to the law.
At the same time, whether then to commence intercourse with the defendant; or antecedently, whether with any and which of the persons following:—
1. If the applicant be a proxy, the principal or principals.
2. Whether a proxy or the principal, any and what co-pursuer or co-pursuers.
3. Any extraneous witness or witnesses, for the purpose of eliciting their respective evidences.
With the defendant and defendants (without waiting for responsion from any other persons, or service from them in any other shape as above,) he will, bating special reason to the contrary, commence holding intercourse.
No such intercourse will be commenced, unless from the applicant’s statement, made under responsibility, the judge is satisfied that, taking it for correct, he will be justified in the exaction of the service demanded, if neither compliance with the demand nor response contesting the justice of it be received, after adequate evidence of the receipt of the mandate to that effect.
On this ground, with or without preliminary measures of security as above, he will address himself to the defendant or defendants, commanding either immediate reddition of the service demanded, or responsion at the judicatory or elsewhere, by means of an appropriate defence paper contesting the justice of the demand.