Front Page Titles (by Subject) CHAPTER XVII.: SUITS, THEIR STAGES. - The Works of Jeremy Bentham, vol. 2
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CHAPTER XVII.: SUITS, THEIR STAGES. - 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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SUITS, THEIR STAGES.
Stages of inquiry, three:—
I. Original inquiry.
II. Reiterated, recapitulatory, or quasi-jury inquiry.
III. Appellate inquiry.
These are the same in all cases. On each inquiry sittings and hearings in any number.
I. Original inquiry, its business. Judge, after hearings, pronounces his definitive decrees, opinative and imperative, and gives execution and effect, if there be no reiterated inquiry.
II. Reiterated inquiry, its efficient causes:
1. Judge’s spontaneous order.
2. On demand by pursuer.
3. On demand by defendant. Spontaneously he may order it; on demand, he must.
III. Appellate inquiry, its efficient cause, demand from either side.
1. Ordinary time, after definitive judication and before execution.
2. Extraordinary time, after interlocutory decree and before execution thereof: where, but for appeal, interlocutory might have the effect of definitive. Examples:—1. Undue delay; 2. Precipitation; 3. Exclusion of evidence.
I. Original inquiry. Initiatory application, if contentious, as on the occasion of a suit, commences by a public application to the judge, by some person as pursuer, or pursuer’s substitute; exceptions excepted, by pursuer.
If upon applicant’s own showing, no probable just cause of demand appearing, the suit is dismissed: vexation thus to none but applicant.
Causes for party’s non-attendance:—
1. His attendance is impracticable.
2. Preponderantly inconvenient.
3. Plainly useless or needless.
In case of falsehood, coupled with insincerity or temerity, applicant is responsible, as effectually as an extraneous witness. So every other actor on the judicial theatre.
Also for purposed insincerity or temerity, in respect of vexation to party, witness, judge, or any other actor.
Application if causeless, wanton, or malicious, a fine to helpless litigants, or say equal-justice fund.
Applicant may bring all or any witnesses, who may all be counter-interrogated.
Applicant, if, with or without other witnesses, he is unable to speak to a certain fact, but indicates one who could probably speak to it, but whom he could not bring,—judge, before dismission or retention, may convene the alleged probable witness; upon like indication of him, another, and so on, till through one or more such indicant witnesses, a percipient witness is found, whose evidence as such is employable.
In so far as the procedure takes this course, it is investigatorial.
Penal, the case in which such investigation is most in demand; but it may be in any case in which the importance will outweigh the vexation.
The first mutual attendance will be the defendant’s first attendance. Now may all parties bring all their evidences. Better so than not: for thus may matters be settled.
In this case will be the vast majority of suits. Examples:—
1. Small debts.
2. Trifling assaults.
3. Vituperative oral discourses, with or without others than the parties for witnesses.
4. Small detected thefts.
Be the case ever so complicated, here may generally be settled—
1. The law and facts in issue.
2. In relation to such evidences as have not been adduced, the persons and things to be sought, and their respective places.
By consent of all parties on the other side, on any attendance after the first, the presence of any party or parties may be dispensed with.
II. Inquiry recapitulatory, or quasi-jury inquiry. The case in which an apt judge will desire it, is where evidences which have been received separately as they could be obtained, require to be confronted. A case in which a party will desire it, is—where to the above use is added that of affording to any error of the judge the corrective applicable by the quasi-jury, with ulterior argumentation on the whole evidence. For the check applied by the quasi-jury, see Ch. XXVI. Quasi-Jury.
On this reiterated inquiry, it being recapitulatory, no evidence will be received that could have been produced during the original inquiry: to save time, by consent of parties, the re-exhibition of any lot of evidence may be omitted.
III. Inquiry appellate. Its efficient cause on either side,—dissatisfaction with judge’s decrees. Sense of exposure to it will be among his checks.
Evidence received here, none but what was received below.
Necessary costs, comparatively inconsiderable:—
1. Sole constant cost, the mere paper of the record.
2. Incidental cost, fees for argumentation by law practitioners.
Matter of the record,—statement of the whole proceedings, evidence included: of this, exemplars from 8 to 12 will have been written at the same time, by the same hand, by an invention in use. Saved thus will be,
1. Time, and expense of skilled labour in revising for correction.
2. Possibility of variances, thence of error.
Record transmitted by post. Expense imposed afterwards on the party in the wrong, if solvent.
Argumentative fees. Case requiring it, and respondent unable,—power to judge below, to defray the expense: to wit,
1. Exacting from appellant, in addition to fees for his own side, the equivalent for those on the other side: or,
2. Ordering money out of the helpless-litigants’ fund as above.
Power to judge appellate, to fine for undue appeal coupled with insincerity, temerity, or malice: fine for helpless-litigants’ fund.
On any inquiry, sittings and hearings may be in any number as above. Sittings refer to time—hearings to suit. Divers sittings may each be engrossed by one suit: divers sults may be dispatched in one sitting, each after one hearing.
Under this code, in each judicatory, in every day of the year, are two sittings: one a day, the other a night sitting.
Justice is as needful one day as another: in the dark part as in the light part. A judge can as easily officiate at night, as does a military officer, a watchman, or a man in any other night occupation. A watchman must keep awake: a judge need but be liable to be awakened.
So, out-door sittings as well as in-door. Jurymen on view are out-door. More trouble is now produced by the excursion of one judge than by that of twelve jurymen. Not but that here the judge carries a public with him; without a public, a judge is a tyrant under the name of a judge: always a tyrant; naturally a corruptionist.
A sitting is either of course, or appointed, or say by appointment:—
1. In course, the judge receives initiative application.
2. By appointment, in consequence of an order for attendance at a particular day and hour, to any person or persons after an initiatory application. Night sittings are never by appointment. Out-door-sittings mode of course.
Exceptions excepted, under this code, in all sittings and all hearings, publicity is maximized. For exceptions see Const. Code.
The stages of judicature might be thought here more numerous than expressed: an additional one is, to wit, as often as any part of a suit passes from one judge to another, particularly from a depute to the principal judge. This, however, is frequently matter of necessity in all systems.
Place does not change here as there; nor thence is the vexation of transition imposed on parties and witnesses. In general, where change has place, the original inquiry will be by a depute—the recapitulatory, i. e. the quasi-jury do, by the principal. Desirable it is, in proportion to complexity, intricacy, and importance, that by the judge who ultimately decides, all the evidence should have been heard, that the whole may have presented itself to him in the same shape, and that the best.
By the judge who extracted the viva voce evidence should the immediate decree, in as far as possible, be pronounced.
Under existing system, for avoidance of responsibility, judges several on the same bench: one of them elicits the evidence, whilst the others only pronounce the decree.
In this arrangement, profit the sole object attended to.