Front Page Titles (by Subject) CHAPTER XVIII.: MEANS OF EXECUTION. - The Works of Jeremy Bentham, vol. 2
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
CHAPTER XVIII.: MEANS OF EXECUTION. - 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.
MEANS OF EXECUTION.
By execution, understand that series of operations by which, on each individual occasion, execution and effect is given, or endeavoured to be given, to that portion of substantive law on which the demand made by the pursuer grounds itself. It is the series of operations, by the last of which that judicial service is rendered, the performance of which is the object of the demand so made.
What is done by this same operation, is the application of one or more of the remedies which, in case of wrong, the law has provided and ordained to be applied.
The portion of law, execution and effect to which is the object of the demand, is either a portion of law ordaining in what case and manner an impetrable right shall, on an application made by the possessor, be converted into a consummate right; or a portion of law by which one or more of the remedies, in consideration of some wrong, of the number of those of which its list of remedial wrongs is composed, is or are ordained to be administered.
By respite, understand respite of execution, in so far as, when, on a certain day and hour execution ought, according to general rules, to be performed, the performance thereof, on account of this or that particular circumstance, is deferred unto some other period or length of time.
Modes of agency applicable to the purpose of execution.
Dependent of course on the mode of operation employed on the occasion, and for the purpose in question, will be in every case, the execution and effect given or not given to the decree in question.
This will of course depend partly upon the nature and condition of the agents, but in a more particular manner upon the nature and condition of the subject-matters operated upon.
As to the agents operating, they will in every case be either persons or things, or both: in so far as they are things, of course they will be things in the hands of persons.
As to the subject-matters of operation, in so far as they come under the denomination of persons, the faculties operated upon—the faculties to which the operation applies itself—will require to be considered and distinguished.
These will be either the physical faculties, in which case the mode of operation will not be different from what it is in the case of things; or the mental, or say the psychological faculties. In this latter case, they will be either the intellectual or the active faculties: and in so far as they are the active faculties, no otherwise can they be operated upon, but through the medium of the sensitive.
Execution and effect may be given to the decree of a judge, either by positive agency, or negative agency. If by positive agency, either on persons, or on things: if on persons, either the person ultimately intended to be operated upon, or some intermediate person, by agency on the physical faculties, or by agency on the sensitive faculties;—on the sensitive faculties, either for the purpose of inflicting punishment, or for the purpose of producing compliance: if on things, either on things appertaining to the person in question, the party in the suit, or on things belonging to any other persons taken at large.
In English practice, under the name of outlawry, this mode of operation is in ordinary use. But in this case it is indiscriminate, applying to all judicial service, and thereby divesting the delinquent of all rights without exception: or at any rate, without any purposed and deliberate exception. It is moreover conjoined with positive agency,—the property of the outlaw being judicially prehensible, and judicially vendible.
Moreover, the evidence on which it is grounded is that sort of evidence, which in its nature cannot but tend to false results; and on which, if justice were the object, no judgment would ever be grounded. In this case, it takes noncompliance as conclusive evidence of delinquency, in the shape of contempt for the authority of the judicatory: whereas it may as easily be, and perhaps as frequently is, the result of inability to exhibit such compliance.
Under the here-proposed code, this negative mode of agency might be employed with any degree of discrimination imaginable: for by vivâ voce examination of the person in question, the whole state of his affairs might for this purpose be brought under view. He might be divested of a mass of property in the hands of this or that person, or of property in the hands of this or that other he might be divested of an as yet unallowed claim upon property in other hands: he might even be divested of his domestic power in relation to this or that child: or supposing the occasion to warrant it, even of conjugal powers or rights; or the faculty of contracting marriage with this or that individual person of the opposite sex, or on part of the female sex, with this or that individual male.
To give effect to any such negative agency, it would be necessary that in giving execution and effect to a decree of this sort, pronounced by one judicatory, all other judicatories should by pre-established law stand engaged to concur: and that actual information of it, effectual and universal information, accordingly be given. In the current systems, this universality of effect actually has place: but as to the receipt of information necessary to prevent injustice, in this as in most other cases, it is treated by them as a matter of entire indifference.
To the decrees of a judge in relation to any person, execution and effect may be given, either with or without the introduction of a person other than the functionaries of justice.
When without such intervention, it will be by mere physical agency in persons or things, as in case of prehension.
When with such intervention, it is by compliance on the part of some person or persons that the effect is produced.
The person in question may in this case be either the defendant, or any other person at large.
On the part of the defendant or any other given person, compliance may be produced by operation on his will, either immediately or mediately through any number of wills, one after another in a chain, as in the case of investigatory evidence.
Call the chain of communication in this case a volitional chain: in the case of evidence, an intellectual chain.
In the way of hostility, or tyrannical oppression, or avowed hostility, compliance has not unfrequently been known to be produced, or understood to be produced, by influence exercised in this unimmediate mode.
In the way of judicature, it cannot be exercised on intermediate agents taken at large, without operating in the character of mislocated punishment, nor therefore without injustice.
But in the case of delinquents, dealt with as such, no reason appears why it should not be employed, in so far as, in the eventual punishment which it involves, no excess has place.
In so far as execution and effect depend upon power exercised by the judge over things, inexecution may be produced by delay, whether the things in question are or are not in the custody or power of the defendant: for in either case, deterioration, destruction, asportation, or concealment beyond recovery, may have place.
Suppose appropriate and adequate security found, provisional prehension and sequestration may on no ground have place in relation to property in the hands of the person intended to be operated upon, whether in the character of a defendant, a pursuer, or an extraneous witness.
As in the one case the object of the judge will be to exclude irreparable damage, so will it equally be so in the other.
On the occasion of the security exacted as a ground for the employment of the means of eventual execution in question, this will accordingly be borne by him in mind.
In the case of things, the mode of operation is mechanical, plain, and easy; so likewise in the case of persons, in so far as the faculties necessary to be operated upon are no others than those physical ones, in respect of which the case is not distinguishable from the case of things.
When the nature of the case requires that the faculties operated upon should be the active, and to that effect the sensitive, then starts up the great mass of difficulty;—then it is, that on the part of the person in question, whatever be the result requisite to be produced, compliance, appropriate compliance is necessary: compliance with regard to mandates and injunctions, or, to use the word more agreeable to the ear of power, obedience: though, in truth, obedience is but one mode of compliance, and the case requires, that be there ever so many modes, they should every one of them be brought to view.
So far as the active faculty and the compliance which belongs to it are out of the question, forthcomingness on the part of the subject-matter operated upon, forthcomingness in the physical sense, conjoint presence on the part of some operator and the subject-matter of the operation, are necessary. In this case, forthcomingness is employed in the literal sense. But when, in so far as mind is the subject-matter operated upon, forthcomingness is not, in the literal corporeal sense, necessary: by an operator stationed in London, operation, and that to the purpose of producing compliance effectual, may be performed upon a mind stationed in Van Dieman’s Land.
In so far as by mind in one place, mind in another place, (though it be ever so widely distant a place,) is capable of being operated upon, especially if with effect—with the effect of producing compliance,—forthcomingness in a particular shape may be considered as having place: forthcomingness in this shape, call virtual forthcomingness: in the other and more ordinary shape, physical forthcomingness.
Here then, and for the several above-mentioned purposes of probation, communication, and ultimate and effective execution, come to be considered the several possible modes of effecting it: always with the ever concomitant and corresponding view of effecting it with the greatest certainty, and, to the purpose of the above-mentioned ultimate end, with the greatest efficiency, and with the least delay, vexation, and expense, to persons associated and interested, whether in the character of parties, witnesses, functionaries, or persons taken at large.
Thereupon call for solution various problems having regard to forthcomingness according to both modes, in relation to which, as above, there was occasion to make the distinction. In the immediately ensuing section, they will find their place.
Of Forthcomingness—to wit, for the purpose of execution.
By forthcomingness, understand throughout appropriate forthcomingness: by appropriate forthcomingness, forthcomingness for the purpose of execution and effect, whether in an immediate way, or in either of the preparatory and instrumental ways above mentioned.
Thus have we forthcomingness to any one of the three purposes above mentioned: probation, communication, and immediate and ultimate execution. In so far as concurrence on the part of the will of him on whom the operation requires to be performed, is not necessary, forthcomingness, in the physical and literal sense;—in so far as such concurrence is necessary, forthcomingness in the above-mentioned virtual sense;—and in this sense, in so far as the operation by which the virtual forthcomingness is produced is effective, compliance is produced and has place.
To be appropriate and effective, forthcomingness, whatsoever be the purpose of it—whatsoever be the subject-matter of it, must be so, not only in respect of place, but moreover in respect of time.
Hence, in the case of forthcomingness for the purpose of eventual execution, comes the danger of irreparable damage, and with it, a great difficulty: especially as, in this case, what is liable to happen is, that the damage may have been produced in a case in which it was not needed: for that, when the time for immediate execution came, the necessary and requisite forthcomingness would not have been wanting.
Such is, by the supposition, the case, as often as a solvent man who would all along have continued so, is subjected to arrest on the score of debt.
Only in this case, where eventual execution comes to be provided for, does the danger of irreparable damage present itself under any particularly formidable aspect: in the case where actual execution comes to have place, no danger need be produced beyond that which was intended.
On the subject of forthcomingness, the following are the topics which present a demand for consideration:—
1. To what particular and specific purposes, on the part of what objects or persons in the character of subject-matters and in what modes, may forthcomingness, physical and virtual, to the general purpose of eventual execution, be necessary.
2. In what shapes or modes non-forthcomingness is, on those several occasions, capable of having place. Of inquiry under this head, the use is that which follows under the next head.
3. In which of those several modes forthcomingness, for the general purposes of execution, is by provision of law capable of being made to have place, and fit to be made to have place.
4. In what manner damage, liable to be produced by the operation of the arrangements having for their object the securing of forthcomingness, and in certain cases, through forthcomingness of compliance, may on the several occasions, on the part of the several classes of persons concerned, be minimized.
This leads to the consideration of the species of damage which in the nature of the case is liable to be irreparable: the shapes in which damage for want of service, or by reason of wrong, must be irreparable. This will depend upon the nature of the subject-matters.
As to descriptions of persons:—1. First come persons at large, in the character of eventual victims of bodily injury, in its several possible shapes. Of these shapes a general idea has already been given: purpose, preserving or rescuing from injury, the person in whose instance the provision for forthcomingness is made, to have place. Mode of forthcomingness,—locatedness in some situation in which the thus protected person may be in a state of security against the evil apprehended.
2. Next come persons appearing in the character of applicants. Purposes preserving from unjust vexation and expense, persons at whose charge, in the character of defendants or otherwise, the application is made: persons at whose charge the service called for by the application, will, if rendered, be granted and performed. Mode of forthcomingness—of all modes by which sufficient security may be afforded to eventual defendants, and witnesses against vexation, unnecessary and thence unjust, either in toto or in degree—of all those several modes, whichsoever shall upon inquiry be regarded as promising to be to the applicant in question least vexatious.
3. Next come cointeressees of the applicant, who, though conjoined with him in respect of interest, have not accompanied him in his application to the seat of judicature. Purposes:—1. Joining with him in affording, as above, security to defendants and forced witnesses, against injustice. 2. Affording to him security for their bearing along with him, their parts in the vexation and expense that may eventually attend the operation of claiming those services, in the benefit of which in so far as the claim succeeds, they will receive a share. Mode, obtaining their personal attendance at the seat of judicature for the purpose of their joint responsibility as above: their attendance, or if without preponderant evil it cannot have place, in some other shape such security as shall be deemed sufficient.
4. Next come witnesses—extraneous witnesses. Purposes as follow:—1. In the case of such as come voluntarily, either in the first instance at the desire of the applicant, or afterwards at his desire or that of any of his co-interessees, security against those for whom they attend, in respect of needless and uncompensated vexation and expense in the exercise of that function; of which security they may in case of need be informed or reminded by the judge. 2. Against falsehood on their part, as well to him at whose request they come, as in favour of the party or parties on the other side, to whose detriment, in the minds of those by whom they are called in, they are expected to testify.
5. As to all the several other actors on the judicial theatre, after what has been said, the purposes and uses of this forthcomingness, as well to each as to all, will not require separate mention.
6. So as to functionaries at large, meaning all such other persons as, not being at the time of the application present at the place at which it is made, may come to their posts to act in the judicial drama. In all ordinary cases, for forthcomingness on their part, the official situations respectively occupied by them will afford sufficient security.
In regard to this matter, whatsoever requires to be recommended as most apt, may be comprised in two rules:—
Rule 1. Of all modes of securing forthcomingness, immediate or eventual—of all modes that promise to be alike effectual, choose that which, with reference to the individual in question, at the time in question, promises to be the least vexatious.
Rule 2. In each case, where the most efficacious is at the same time the most vexatious, weigh against the evil of vexation from execution, the evil from the diminished probability of ultimate execution, and embrace that mode which promises to be the least vexatious.
For this purpose, the circumstances of the individual will in each case require to be taken into account. From the nature of the suit alone, no well-grounded judgment can be formed.
At the commencement of a suit, actual forthcomingness is necessary for one purpose; eventual forthcomingness, and actual security for it, at another time.
In so far as, on the part of the individual in question, testification in the presence of the judge is necessary (or for any other purpose,) the forthcomingness necessary is actual forthcomingness: in so far as such testification is not necessary, actual forthcomingness may not be necessary; eventual forthcomingness, and thence present security for eventual forthcomingness, may be sufficient.
For thus obtaining and securing compliance respecting forthcomingness, the means employable are either such as operate on the body, or such as operate only on the mind: in the first case, they may be styled prehensive; in the other case, accersitive. To employ the prehensive means, is to cause the person in question to be secured wherever he is, and (as a thing moveable might be) brought to the place at which the operation, whatever it be, which it is decreed to perform on him, may be performed: in the case here in question, that of causing him to speak in relation to the subject in question.
The prehensive is always the most vexatious: it ought, therefore, never to be employed but under the expectation that the accersitive will not suffice.
To things, the prehensive is the only one of the two means which the nature of the case admits of. But the prehensive may be performed either by the person in whose custody they are, or by the functionary by whom, if performed upon him, the prehensive would be performed.
When things alone are the intended object of prehension, the appropriate instrument is therefore (unless effective reluctance be apprehended) an instrument of accersition addressed to the person, coupled with an instrument of mandation, requiring him to prehend and adduce the thing.
On what occasions—in what shapes, may forthcomingness with most advantage be made to have place; to wit, to the several purposes of eventual execution, probation, and communication, and in each instance, with least damage?
In so far as the sole purpose in view is the production of forthcomingness, the sole purpose in view is the production of compliance on the part of him in relation to whom the desire is, that he be forthcoming: the question, therefore, respecting forthcomingness, may be changed into a question respecting compliance. The individual being supposed to be, as to the purpose of compliance, forthcoming; which is the most efficacious course, and, at the same time, the aptest in other respects, that can be taken for the securing of compliance?
The problem then here is, at the commencement of a suit, in case of apprehended reluctance and noncompliance at the end of the suit, how to obtain adequate probability and assurance of compliance at the end of the suit: compliance, in so far as at the time in question may be found necessary to the giving execution and effect to the decrees, which the judge may eventually see it right to issue.
In other words, what are the obtainable—and of those obtainable, what the most apt, and thence desirable, pledges for the defendant’s compliance with such decree as it is in the contemplation of the judge to issue?
Forthcomingness in relation to the fictitious entities termed rights—forthcomingness in the physical and proper sense,—actual forthcomingness, cannot have place: not so in the improper, but not the less necessary sense—not so that which may be termed virtual forthcomingness.
As to the mode in which forthcomingness with relation to these fictitious, but not the less valuable objects or subject-matters is capable of being employed, and thence the purposes, to which it is capable of being employed to effect in the most beneficial manner: these are as follows,—
1. In the case of such as are transferable,—eventually employing the right in the character of matter of satisfaction.
2. In the case of those which are untransferable, as well as those which are transferable,—employing them as instruments of punishment: for in so far as abstracted, in that character may the matter of good in this as in any other shape be employed.
3. So the employing them in the character of instruments of constraint or restraint.
The shapes in which nonforthcomingness may have place,—the causes by which at the time in question it may be produced, are—
I. Nonforthcomingness of persons.
1. Take, in the first place, those which have place on the part of a person, and not on the part of a thing. Of these, take the following for example:—
2. Relative confinement (territorial.)
3. Relative infirmity of body, not incurable.
4. Relative infirmity of body, incurable.
5. Relative infirmity of mind, not incurable.
6. Relative infirmity of mind, incurable.
7. Relative infancy.
By relative, understand, in such sort and degree as to the purpose in question, in the individual case in question, to operate superably or insuperably, as an obstacle to forthcomingness.
II. Nonforthcomingness of persons and things.
Take, in the next place, those cases in which this obstacle is capable of applying not only to a person but also to a thing; at any rate, to a thing of the moveable class.
1. Expatriation precedential or antecedential; to wit, to the time of the application made.
2. Expatriation consequential or subsequential, apprehended.
3. Exprovenention precedential as above.
4. Exprovenention subsequential, or consequential apprehended.
5. Latentcy,—the place kept purposely unknown with relation to the time of the application: this may be antecedential or apprehended, consequential or subsequential, as above.
In the case of persons, forthcomingness may be necessary, and nonforthcomingness a source of irreparable damage, in any one of these capacities:—
1. As subject-matters of wrong or injury.
2. As sources of remedy for injury.
3. As sources of evidence.
4. As instruments of communication; to wit, with reference to such subject-matters, between which, communication is capable of being made to have place.
In the case where, by forthcomingness, a person is capable of being a source of redress or remedy, the means by which he may be so are as follow:—
1. By being compelled to administer satisfaction.
2. By being compelled to suffer punishment, for the general benefit of justice.
3. By being induced, by whatever means, to afford evidence.
4. In particular situations as to time and place, by being employed as an instrument of communication; to wit, between any of the several subject-matters above brought to view.
Of the want of forthcomingness on the part of a person in any one of the above-mentioned several capacities, irreparable damage is capable of being the result.
Of forthcomingness on the part of things, the purposes may be—1. Securing from damage, and in particular from irreparable damage, the thing in question, and all who have an interest in it. In the case of a suit of which a thing is the object or subject-matter, these will naturally be, the applicant, and if he has any, his cointeresees.
2. Preserving it from being converted into an instrument of mischief, regard being had to the proprietor, or any other person in whose custody or power it may happen to be lodged.
3. Employing it as an instrument of compulsion or restriction, for the extraction of forthcomingness, or of compliance in any other shape at the hands of any person by whom any interest in it is possessed.
4. Employing it as a means of affording satisfaction, whether identical or compensational, as the case may be: or in default of other means, even as a means of punishment.
The eventual forthcomingness produced for the purpose of execution, whether it be the forthcomingness of a person or a thing, may be either the ultimate or the instrumental object of what is done. Thus, where it is instrumental, the forthcomingness produced on the part of a person may have no other object than the producing eventual forthcomingness on the part of a thing; or the forthcomingness produced on the part of a thing may have no other object than the producing eventual forthcomingness on the part of a person: the owner of a horse may be taken into custody, for the purpose of causing him to give up the horse; or the horse may be taken into custody, for no other purpose than to cause the owner to pay attendance at the judicatory.
Nonforthcomingness or noncompliance may have been produced by any one of the several causes following:—
1. Want of notice, i. e. knowledge of the obligation and demand.
2. Want of power.
3. Want of will.
Supposing notice given and received, either want of power or want of will has been the cause of it.
Supposing power not wanting, only can want of will have been the cause of it.
Of want of power, the cause may be, with relation to the person in question, either intrinsic or extrinsic: intrinsic, as in case of infirmity whether of body or mind, permanent or temporary: if extrinsic, it may be natural or factitious; natural—for instance, the state of the weather or the road, whether in the state of unaptness or distance; factitious, as in the case of an insuperable impediment, imposed by any human hand.
When will is wanting, the deficiency will have its cause in the contemplation either of the immediate or of the ultimate object, in the endeavouring to produce the forthcomingness, as the case may be: in either case, in the contemplation of the suffering which may be the result of it.
When for the purpose of punibility, or satisfaction, forthcomingness of the person does not exist, it may still exist for the purpose of testification.
Letters from Europe reach Van Dieman’s Land, and a letter from a judge to an individual there, need not find more difficulty in doing so, than a letter from a father to a son. The answer might come either without the intervention of any functionary there, as does in England the answer to a bill in equity; or in case of need, supposing a judicatory upon the plan of this code established there, the ministry of the judge might be employed there, in securing correctness, completeness, and clearness, by vivâ voce interrogation, in the same manner as in England.
III. Nonforthcomingness of rights. In this case, no other cause can nonforthcomingness have, than the nonpossession of that authority by which rights are maintained or annihilated at pleasure. In the case of rights, forthcomingness, then, is a state of things which can never fail to have place—nonforthcomingness, a state of things which never can have place.
Of Procedure inter distantes.
When parties on both or all sides, with sources of personal, written, and real evidence, are all stationary and within the local field of the same immediate judicatory, it is well: and happily, in this case are most suits, and most occasions of demand for suits: and in this case, unavoidable delay, vexation, and expense, are minimized.
But what is unhappily not impossible is, that these several objects, individually taken, may, if fixed, be each of them under a different judicatory; each of them in a state of migration: all of them in the field of one and the same foreign judicatory, of one and the same foreign state; or each of them in a different judicatory of the same foreign state; or each of them in some judicatory of a different foreign state: and of each of these objects, the number may be indefinitely great.
Thus complex, consequently thus embarrassing, may be the state of things for which provision may require to be made.
In so far as the field of operation extends not beyond the local field of dominion of the political state in question (distant dependencies at the same time, with their necessarily half-independent official establishments, out of the question,) the difficulty is not insuperable: nor yet would it be insuperable, if nations so contiguous, that of the dominions of each, some part were nearer to some part of the other than to some part of its own, had each of them to this purpose the same system of procedure. But how distant the prospect is of any such extensive good, in this or any other shape, is but too manifest.
On this occasion, when difficulty is spoken of, it is on the supposition that the maximization of the happiness of the greatest number being the all-comprehensive end in view, the adjective branch has for its end in view, maximization of rectitude of decision, and minimization of delay, vexation, and expense.
But under the current systems of procedure, no such difficulty has place: nautically speaking, all is plain sailing. Knots, how numerous soever, are all dealt with in the same manner; all dealt with in the manner of the Gordian knot. For all of them, one sword serves—sinister interest in the hands of the appropriate constituted authorities, but more particularly those of the lawyer tribe. To maximize the number of suits and defences that will afford lawyer’s profit, maximizing at the same time the quantity of such profit extractible and extracted from each—to minimize at the same time the number of suits that will not afford lawyer’s profit: such are the conjunct ends to which, in so far as depends upon that tribe, all arrangements and proceedings under them are directed. As to the maximization of rectitude of decision, taking the law for the standard, it is matter of indifference: as to the minimization of delay, vexation, and expense, it is matter of abhorrence, seeing that minimization of lawyer’s profit would be among the results of minimization of expense.
Suppose this case:—pursuer one, defender one; condition of both stationary, but domicile of pursuer in the field of one immediate judicatory—domicile of the defender in that of another.
In this case, the simplest course, and in general perhaps the least inconvenient, will be for the plaintiff to repair in person to the defendant’s judicatory. To the plaintiff, this arrangement will be the most convenient in respect of the faculty of judicial compensation—a faculty which, if the right be on the pursuer’s side, will be in most cases of prime use to him, and cannot, in any case except in respect of the vexation and expense of migration, be in any way disadvantageous to him.
Note,—that by the rules of procedure, preference in respect of priority in hearings should on this account be given to parties coming from a distance: for the like reaon, so also to extraneous witnesses.
But what may also happen is, that not without preponderant inconvenience, or perhaps not on any terms, is it in the power of him who would be pursuer to make this migration. In this state of things, either examination through the medium of writing must be admitted, or execution and effect cannot be given to the portion of law on which the right of the pursuer to the services of the judge, for the purpose of his demand, is grounded.
Examination of a person, party, or extraneous witness, through the medium of writing, is, in the nature of the case, performable in either of two ways: immediately without the intervention of any judge; or unimmediately with the intervention of the judge, sitting in the justice-chamber of the judicatory under which the defendant has his abode:—mode, in the first case, the epistolary mode; in the other, the distant-examination mode.
In the case where, through the intervention of writing, the judge is occupied in the business of examination as above, the writing must have been addressed to the judge. For suppose no such writing addressed to the judge, and yet the judge employed, the case must be, that though the pursuer is not present, some substitute of his is; and if so, the case is the same as if the pursuer himself were present, except that the defendant has not in this case the benefit of extracting information and admissions from him, as if he were on the spot.
It being supposed that it is by the medium of writing addressed and communicated to the judge that the examination is performed, what is possible is, that the instrument of examination consists of nothing more than a string of interrogatories, to which it is the business of the judge to extract answers. In this case the examination is performed in the same manner as when, in the English equity courts, the examination of an extraneous witness, or of a party considered in the character of a witness, is performed.
In that case, be the importance of the cause ever so great, this vital function is abandoned to some obscure underling whose name is never known, and who acts in secret, no third person being present, and who in relation to the matter in dispute has no other information than what the interrogatories give him—a sort of information which in the case of the epistolary examination of a defendant by the initiatory discourse of a pursuer, termed the bill, is not admitted as sufficient: to authorize the exaction of an answer, a correspondent assertion on the part of the pursuer is made indispensable, though that assertion is, without check or pretence of check, allowed to be false, and is so perhaps as often as not.
As to these two modes, there seems no reason why the option of them should not be given by law to the pursuer: in some circumstances, the one will be the more advantageous to him, supposing him in the right; in others, the other.
If performed in the purely epistolary mode without the intervention of the judge, the examination of the defendant will in so far be performed in the same manner as under the authority of an English equity court it is performed on a defendant, in and by the initiatory instrument called a bill; except that in such bill, to the string of interrogatories is prefixed a vast mass of irrelevant matter composed of lies and absurdities, such as in any system of procedure which had justice for its object, never could have had place.
In this case, unless by accident, the pursuer’s judicatory has at command some means of justiciability, sufficient in the case in question to ensure compliance (property, for example, susceptible of prehension,) the pursuer will not have any means of securing ultimate compliance with his demand, nor in the meantime, responsion to the purpose of giving effect to it, without the intervention of the defendant’s judicatory.
Under these circumstances it seems scarce possible to secure prompt and effectual responsion without full communication on the subject with the judge—a communication not less full than what would require to be made by the pursuer to an agent of his own. On the part of the defendant, suppose (what will always be the most common case) complete reluctance, the following are the courses which it will take:—
1. In the first place, non-responsion, viz. down to the last moment, and for the procurement of toleration, excuse upon excuse, if any, are admitted. True it is, that for securing the correctness of such excuses, and thence the absence of them, where no proper excuses have place, punishment for mendacity, insincerity, or rash assertion, will in course be impending: but of such restraining powers the efficiency cannot in every case be complete. For, with a little ingenuity, under circumstances tolerably favourable, excuses, which if they came of themselves would be just andyadequate, may be brought into existence.
2. The stores of non-responsion being exhausted, next comes insufficient responsion: on the defendant’s part, the insufficient responsion; on the pursuer’s part, indications of the sufficiency, with directions for the supply. To the length of this series—to the number and respective magnitude of the terms of which it may be composed, it seems not easy, if it even be possible, by any general view that can be taken of the subject, to set limits. For producing the effect that would be aimed at by any such limits, a course that presents itself is this:—on the pursuer’s part, facts, which if true would be sufficient (notwithstanding anything that could be said on the other side) to substantiate the pursuer’s claim, are hypothetically asserted, accompanied with a statement, that to that special purpose, true or untrue, unless sufficiently contradicted, they shall be regarded as admitted.
Hence, on a general view, may be seen the difficulties with which, in every case in which there is no judicial confrontation of parties, a pursuer may have to contend. Without his presence, an agent, however ample his instructions, though acting in the presence of the defendant as well as the judge in the distant judicatory, may be but an inadequate substitute.
If an agent chosen by the party as the most likely, more so than any other person he has access to, to espouse his interest with the greatest warmth, and thence to apply his faculties, such as they are, to the subject with the strongest force of attention, is liable to be thus inadequate,—still more so, generally speaking, will be the judge. Skill derived from appropriate practice and experience, say still greater; but for the natural deficiency in the article of zeal, it were too much to expect that, by any extra magnitude of skill, compensation will in an adequate degree be made.
What may be said in general is, that the less complicated the case, the greater the probability is, that, without the judicial confrontation, examination in the epistolary mode can be made sufficient for a well-entitled pursuer’s purpose. To make his option between the two modes, will therefore rest on the pursuer in each individual case.
A case in which the services of the distant judge might be employed in this good work with particular advantage, is this: a pursuer by reason of his occupation or state of health, is incapacitated from migrating to the distant judicatory, and staying there for the requisite time; and moreover, by the state of his pecuniary circumstances, incapacitated from engaging the services of a professional, or other apt agent. Here might be a case of compassion, calling for the conjunct operation of the judge of the pursuer’s judicatory, and the judge of the distant judicatory, namely, the defendant’s judicatory. The pursuer-general, in his quality of advocate of the poor, extracts from the mouth of the pursuer, in the presence of the judge, facts which, in his view, and in the view of the judge are, if true (the contrary of which he sees no ground to suspect,) sufficient to constitute an adequate ground for the pursuer’s demand; at any rate if supported by such evidence as the pursuer, subject to punishment as for insincerity, has stated as being about to be proved by such persons as he has given indication of.
The minute in which this evidence is contained, being authenticated by the signatures of the pursuer-general and the judge, accompanied with such explanatory observations, if any, as shall by them have been deemed requisite, is transmitted by this same judge to the judge of the defendant’s distant judicatory, with a request to him to convene the defendant, and proceed thereupon as the justice of the case may require.
What has been above observed in relation to the case where, at the instance of a pursuer, a defendant is at the commencement of a suit to be examined, will, to an extent more or less considerable, be found to be applicable to the case where, on that same side, or on either side, a person is to be examined in the character of an extraneous witness. Considered merely in the character of a witness, one part of that which would commonly compose the subject-matter of examination in the case of a defendant, has no place in the case of an extraneous witness. This part is what is composed of the subject-matter of admissions. The facts proposed to be admitted may in any number be facts of which the defendant has no personal cognizance; he not having been, in relation to them, himself a percipient witness, but being satisfied of their existence either from report made to him by percipient witnesses, or by inference drawn from circumstantial evidence. From an extraneous witness, nothing in the way of admission, as above, will be relevant; the only facts, the statement of which can with propriety be received from him to the purpose of their operating in the character of appropriate evidence, will be those in relation to which he has been a percipient witness: as to any other facts, if his testimony be in any way relevant—if it be capable of throwing light on the matter in dispute in any way, it will be in the character of purely indicative evidence, giving information of a source from whence appropriate evidence may, it is supposed, be extracted.
As to indifference, although it may have place, and of course not unfrequently will have place, it is, however, no more to be depended upon, consistently with common sagacity, in the case of an extraneous witness, than in the case of a party—on the occasion here supposed, a party on the defendant’s side. By interest in every imaginable shape, self-regarding, sympathetic, and antipathetic—by a tie of interest, of any degree of strength from that of a cob-web to that of a cable—from the slightest imaginable, up to an interest equal in strength to that of the party himself, or even greater, may the affections and correspondent conduct (that is to say, on the present occasion, the discourse of the extraneous witness,) be determined. By correspondent variations in respect of frame of mind as between a party defendant and an extraneous witness on his side, the bias towards that side in the mind of the extraneous witness may be made even stronger than that in the mind of the defendant himself. Many, there can be no doubt, have been the occasions on which, for the purpose of giving support to the side of a defendant in a suit, in which, for the advancement of his own interest, the defendant would not have transgressed the line of truth, an extraneous witness has, without solicitation on the defendant’s part, or intercourse held with him immediately or unimmediately, transgressed that same line in such sort as to have fallen into the guilt of perjury.
Of these observations, what is the practical bearing on the case here in hand? It is this, viz. that as to reluctance in the mind of an extraneous witness, a degree of it may not unfrequently have place, not inferior but even much superior to any that has place in the mind of the defendant himself. In a way perfectly simple and intelligible, a difference not greater than that which is continually exemplified between two persons standing in these two relations one to the other, will suffice to realize this at first sight apparent paradox, without recourse to any such untangible state of things as that of a difference between two minds. The supposition is realized as often as an extraneous witness in indigent circumstances has in expectancy a benefit, the value of which to him in his circumstances is greater, than to the defendant in his affluent circumstances is the value of the whole subject-matter of the dispute.
Generally speaking, in the situation of extraneous witness, the quantity of matter required to be extracted from a man will be, to an indefinite amount, less abundant and more simple than what will require to be extracted from a man in the situation of a party defendant. Most commonly, the fact in relation to which he will be called upon to testify, will be some one fact, in relation to which he has been a percipient witness; while the facts which, for the purpose of one and the same suit, a pursuer may have need to establish as against a defendant, may be indefinitely and highly numerous.
The practical conclusion is, that, generally speaking, examination in the epistolary mode, with or without the intervention of the judge of the distant judicatory, will be more frequently found eligible, as applied to the situation of an extraneous witness, than in its application to the situation of a party defendant.
As it can seldom fail to happen that, in the situation of pursuer, a party may have need to extract admissions or testimony, or both, from the lips or hands of a defendant, so what will be continually happening is, that on his part, the defendant may have like need to extract admissions or testimony, or both, from the lips or the hands of the pursuer.
Under the authority of the English equity courts, where this sort of reaction has place, the lawyer tribe have given themselves the benefit of making for themselves an additional suit out of it. This suit is called by them, a crossed suit, or a cross cause: and forasmuch as, on the part of the plaintiff and his professional advisers and assistants of all classes, reluctance in respect of admissions and testimony may be not inferior to what it is on the defendant’s side, hence it is, that by a state of things thus frequently occurring, the delay, vexation, and expense, with the profit extractible and extracted out of the expense, is doubled: and this in the perhaps comparatively rare case (relation had to the sort of causes carried into those courts,) of a suit so simple as to have no more than one party on each side.
So much for testimonial evidence, received or extracted for the purpose of the suit. Remain, ready-written, and real evidence. In this case, comparison had with those which precede, but little difficulty has place: on the part of the written document, no reluctance to the being produced; as little in the case of real evidence, unless a possible exception he considered as having place in the case of an animal, to which, while perception is ascribed, reason is denied. But in this case, whether it be a canary bird or an ostrich, a Guinea pig or a royal tiger, no obstacle imposed by reluctance is apt to be found insuperable.
But all ready-written evidence, and all sources of real evidence, have this in common with one another, and with every source of oral evidence, viz. that they are in the custody of some keeper; and on the part of this keeper, whether it be in the character of party defendant or extraneous witness, reluctance in any degree may have place.
The case is not much varied, where instead of appearing in the character of a source of evidence, the written instrument, or the other thing in question, of whatever sort it be, has need to be made forthcoming in the character of a subject-matter of the dispute. Of the demand on one side of the suit: of the defence on the other. The same horse which constitutes the subject of the pursuer’s demand, and which, in case of success on his side, will be to be delivered into his possession, may in the mean time be to be inspected, for the purpose of ascertaining the condition the animal is in, and thence its value.
In the cases last mentioned, the difficulty of obtaining, at the hands of a relatively distant judicatory, the assistance requisite to justice, may be considered as being at its minimum.
Ready-written evidence affords modifications in relation to which, appropriate arrangements will require to be made in detail.
Documents, of the contents of which the temporary concealment is necessitated by some exigency of the public interest, must not, during the time of such concealment, be rendered accessible at the command of private exigency or private artifice.
To maximize for all these several purposes, the facility of intercourse between judicatory and judicatory, will be among the cares of the system of procedure. For this purpose alone, were it applicable to no other, the sort of establishment so extensively known under the name of the post, might be worth instituting and keeping on foot, where it is not instituted and kept on foot.
By the transmission of the record itself from the immediate to the appellate judicatory, instead of a transcript,—delay, vexation, and expense, may to no small amount be saved. A transcript would indeed require no more time than the original for its conveyance. But for the transcription, time in no small quantity will be requisite. This time cannot easily be other than official; and of official time thus employed, the quantity cannot be otherwise than limited. Documents liable to be of such importance cannot safely be located, though for ever so short a time, in any other than well known hands. In English procedure, the transmission of a record in the original, from an immediate to an appellate judicatory, is familiar practice: it is the result of the sort of imperative decree known to lawyers by the so unexpressive appellation of a writ of certiorari, or for shortness, a certiorari. In this case, the document continues at the seat of the judicatory, by the authority of which the transmission of it was exacted.
By retransmission, the purposes of justice may be better served; but among the purposes of the system here in question, the purposes of justice never have had, nor ever could have had place.
A friendly, or say accommodating auxiliary judicial bondsman is, as we have seen, a person who, on the occasion and in the course of a suit, lends his aid to one of the parties, by taking upon himself an eventual and future contingent burthen, for the sake and purpose of conferring on that same party a present benefit reputed more than equivalent.
To a party on either side of the suit is this good office capable of being rendered.
It may be rendered in every part of the course of the suit, on any occasion, for any purpose.
Of the case in which it may be rendered to a party on the pursuer’s side, an example is as follows:—
According to the evidence delivered by a pursuer, circumstances on the part of the defendant are such, that unless for the giving ultimate execution and effect to a decree establishing the pursuer’s demand, arrangements of security are taken, onerous to any degree not exceeding the burthen of such ultimate execution,—the probability is, that the necessary means of giving effect to such ultimate decree would not be obtainable.
In any number, any persons may be co-auxiliary bondsmen for any person.
But it will be for the care of the judge that this accommodation be employed in such sort as not to produce without his intention a commutation of corporal for pecuniary punishment.
In respect of judgment, attentiveness, and even probity, the reputation of the judge stands pledged for his not suffering this faculty to be employed as an instrument for the evasion of justice, as by acceptance given to bondsmen whom the event shall have shown to be insufficient.
Of the demand for security in this or some other shape, the urgency will be directly as the magnitude of the evil to which the proposed defendant will, by being constituted such, be exposed, and inversely as the responsibility of the applicant in respect of his condition in life.
On this occasion, the party primarily benefited is the proposed pursuer; for, but for this benefit, the benefit which by the legislator is intended for him, might by the judge be denied.
The security thus afforded to a proposed defendant against vexation at the hands of a proposed pursuer is but one of divers securities, of which, on every occasion on which by the judge a security is regarded as necessary, the least burthensome will be preferred.
Where the co-sponsors, or say co-accommodationists, are more than one, the loss will be divided according to pecuniary circumstances, as in cases of compensation for wrong.
On the accommodation-engagement instrument, the matter of the accommodationist’s code will have been printed. A separate register will in every judicatory be kept, under the name of the accommodation-register.
In the accommodation-register, on the occasion of each individual-accommodation-engagement, from this elementary matter, general matter under correspondent heads will be deduced at the end of each year, for the whole of the year:—
1. Name of the suit, and the occasion on which the accommodation bond is entered into.
2. Inconvenience saved by the accommodation-engagement.
3. Party to whom the inconvenience was saved.
4. Person on whose application to the judge, the engagement was entered into.
5. Time during which the engagement is to continue.
6. Result of the engagement—the inconvenience incurred or prevented.
Subject-matters, which for the purpose of securing compliance to a judicial mandate are in general capable of being acted upon, are property and person: by possibility, reputation and condition in life; but so rare and extraordinary are the cases in which to this purpose they are capable of being acted upon, and so precarious is the success of any endeavours for that purpose, that they may be put aside as not worth insisting upon in comparison with either of the two others; to wit, person and property.
In regard to property, a circumstance that presents itself at first view is, that in the case of a great part of mankind, persons under age included, or in the case of a considerable proportion, indeed considerably the greater part, co-subpossession has place.
To execution, whether provisional (or say instrumentary) or definitive, cooperation on the part of him at whose charge it is to be performed, may be necessary or not: if, and when necessary, compliance on his part requires to be produced.
Universal accommodation having been the end in view of this institution, in so far as it has any end in view, such accordingly is the use and application hereinabove made of it. Occasions, as many without exception as those in which this effect could be given to it; sides of the cause both, on the one with the same facility as on the other; number of persons admitted to the exercise of this beneficent function, in whatsoever number disposition is found to have place, and the exigency of the case is found to require: number no more than one, where the means and situation in life of that one are sufficient; number to any amount greater than one, where for the eventual sum necessary to constitute the security, a smaller number will not suffice.
How in these several respects stands English practice? On the plaintiff’s side, to afford a warrant to the burthen imposed on the defendant, this security, originally with parade established, has little by little, as it were by stealth, and for the evident predatory purpose above intimated, been withdrawn. Number in every case two, however superfluous one of the two might be; number never greater than two: consequence, where two could not be found to make up the quantum of security thought fit to be exacted, the security not given, and for want of it, the inconvenience, how great soever, imposed.
No facility is allowed of acting upon property. On the other hand,—on person, such is the facility afforded for operating, that within the memory of man, any person might, on pretence of giving commencement to a suit, for a longer or a shorter time as it might happen, deprive any man whatsoever of his liberty, without having, or so much as fancying or pretending to fancy that he had any right to do so. Against wrong by abuse made of this unbounded power, no security afforded beforehand, no remedy by compensation afterwards. At one time, indeed, something in the way of security was provided: witness the clause si fecerit te securum, with which the order of the sheriff, authorising and commanding him to exercise this afflictive power, at one time commenced. By this clause, of which originally some sense of shame had produced the insertion, a certain limit was applied to abuse. But by limit thus applied to abuse, limit was applied to profit, and no such limit could judicial rapacity endure.
Thus was the liberty of every man sold to every man who would pay the price for it, without any other pretence than an intention to pursue a claim of debt for any amount, how small soever, and without charge of crime in any shape.
But when crime was imputed, and intended to be prosecuted—crime to any amount, howsoever large; then came tender mercy, and caution, by which a vast and complicated system of machinery was set to work, and proportionable uncertainty and chance of escape for criminality produced. Now was set to work the grand jury, with the number of its members necessary for concurrence, from twelve to three and twenty, to take cognizance of the sufficiency of the grounds on which this power was applied for, and oath of secresy taken by all its members, lest by disclosure the person whom, on hearing evidence, they had pronounced guilty, should find means of escape; which escape might on every occasion be produced without the smallest difficulty or danger on pretence of tender-heartedness, by any one of a set of men by whom, in the capacity of petty juryman, after difference of opinion, no verdict could ever be given without commission of perjury.—Contrast this tenderness for, and security afforded to all criminals, with the utter denial of all security to those to whom no criminality in any shape was so much as imputed, by an oppressing adversary.
The first occasion on which the alleviation of this hardship was conceded, was that on which it was granted to a suitor, who in the character of a defendant had been punished as above, without so much as pretence of criminality on his part in any shape. If two persons could be found, each of whom in case of his escape, was content to bind himself to double the amount of the sum claimed on the score of debt, he was then, in the event of their being approved of, and so binding themselves, released from imprisonment, after having suffered it till they could be found. These bondsmen were, by a joint appellation, termed bail. No bail, no release.