Front Page Titles (by Subject) CHAPTER XIX.: COUNTER-SECURITY. - The Works of Jeremy Bentham, vol. 2
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CHAPTER XIX.: COUNTER-SECURITY. - 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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Counter-security, is security for the defendant against oppression, designed or undesigned, producible at the instance or on the behalf of the pursuer, by the exaction of preliminary security for the reddition of the service demanded by the pursuer.
It is constituted by, and is in proportion to the responsibility, satisfactional and punitional, eventually imposed on the pursuer; to wit, in case of oppression, as above; particularly if falsehood be employed in the production of it.
Considered as to the person on whom imposed, it is either direct—(directly seated;) or collateral—(collaterally seated;) directly, in so far as imposed on the pursuer alone: collaterally, in so far as imposed on a pursuer’s bondsman, whose consent to [Editor: illegible word] subjected to the burden has been procured, by some tie of self-regarding or sympathetic interest.
Considered as to time, it is either actual, in so far as the burden of it is actually imposed: or eventual, in so far as the burden is only made eventually imposable.
Of the employable species of counter-security—of the shapes in which, of the judicial operation by which it may be afforded, examples are the following:—
1. Impignoration pecuniary,—exaction of the deposit of a sum of money under the charge of the registrar.
2. Impignoration applied to things moveable, of condensed value: say, for instance, precious stones, or gold bullion, or costly paintings.
3. Impignoration applied to things moveable, of ordinary value: for instance, household furniture, or stock in trade in any shape, by consignment to some special trustee, located by the judge.
4. Impignoration, applied to a thing immoveable, by consignment as above.
In these last three cases, the impignoration may be termed quasi-pecuniary.
5. Impignoration of miscellaneous and detached rights, by suspension and eventual ablation of them.
6. Impignoration applied to the person—by incarceration for safe custody.
7. Impignoration, by quasi-incarceration, confinement within boundaries not physical but ideal, prescribed by mandate.
In choosing the species of counter-security, the judge will have regard to the following rules:—
Rule 1. Prefer a shape or species, by means of which compensation may eventually be afforded to the defendant so far as it goes, to any by which no such satisfaction can be made to be afforded. Hence,
Rule 2. Give to the security the pecuniary or quasi-pecuniary shape, according to the amount of it, in preference to every other.
Reasons: By the burthen of compensation, the effect of punishment, according to the amount of it, is produced; whereas by barren punishment no such effect as that of compensation is produced.
As to satisfaction in a vindictive shape, this would equally be produced by compensation to the same amount.
Rule 3. In so far as sufficient, prefer the least afflictive shape: accordingly, announcement of eventually imposable, to actually imposed.
Rule 4. In so far as consented to, employ counter-security with less reserve, than the preliminary security. Reason: The individual is the most competent judge of the degree of the afflictiveness in his own instance: if the burden be too afflictive, he will not subject himself to it.
Rule 5. With a view to degrees of afflictiveness, never lose sight of the difference between the situation of the two parties, in respect of pecuniary and other circumstances.
Counter-security, need of.
The need of counter-security is produced by, and proportioned to, the magnitude and probability of the evils which, by prehension and adduction of the individual, are liable to be produced for want of it. These evils will have their rise, partly in the situation of the proposed defendant, partly in the disposition and situation of the pursuer.
Of the evils liable to be produced by the situation of the proposed defendant, examples are as follows:—
1. The proposed defendant, labouring under a disease for which a distant climate is, by medical advisers regarded as affording a probable, and the only means of escape from impending death. Effect of the execution, of the prehension and adduction mandate—the same as that of a sentence of death pronounced and executed.
2. The proposed defendant is on the point of embarking with a cargo for sale, in which the whole of his capital is invested: before he could have been set free to embark, the vessel has sailed, and, within the time, no person able and willing to undertake charge of the cargo could be found by him. The consequence is, a part more or less considerable spoilt, purloined, or sold to a loss: to the amount of the loss no assignable limit. Effect of the mandate, fine with execution to that amount.
3. In the vessel went a female, to the proposed defendant an object of matrimonial pursuit with prospect of success: the female faithless; consequence, her marriage with another: loss indescribable and incalculable.
4. Destination as before: the female a new-married wife. In the vessel, or on arrival, she finds a seducer; consequence, seduction: loss again incalculable.
In each instance,—cause of the evil, accident,—or sinister design. If sinister design, for proposed defendant, say victim or intended victim.
1. In case of the disease: victim, say a rich proprietor: machinator, a next of kin, or expected legatee.
2. In the case of the emigration with a cargo: machinator, say a rival trader.
3. Victim, the disappointed lover: machinator, the successful rival.
4. Victim, the new-married husband: machinator, the seducer.
In no one of these cases, unless specially provided against as below, does the machinator stand necessarily exposed to legal responsibility in any shape. To the accomplishment of the design, no mendacity, punishable or so much as unpunishable, is necessary. Many are the ways in which, for any such purpose, the machinator may, in relation to the intended victim, contrive to place himself in the situation of creditor.
In the shape of a bill of exchange in which the proposed victim stands as drawer or indorser: in this shape, or no matter in what other, he obtains the efficient cause and probative evidence of a debt which, without injustice or imprudence, the debtor may have left outstanding, having before his departure left in proper hands funds adequate to the purpose.
Nor is it necessary that the hand by which the evil is produced should be that of the principal and prime author. It may be by that of an instrument of his, rendered such by deceit. When the maiden has lost her lover, or the wife her new-married husband, the seducer, full of sympathy and assumed wrath, flies to her relief, and wins her affections.
Of disposition on the part of the pursuer, examples have been seen as above. His situation, unless appropriately modified by counter-security—his situation, in the case of sinister design, whether principal, or instrumental and accessary, as to effective responsibility in every shape, is completely irresponsible.
Happily, in the general run of cases there will be little difficulty. On the one hand, the nature of the service demanded, coupled with the situation of the defendant, will not require for the securing compliance on his part (or at any rate the effect sought for from his compliance,) the imposition of any such vexation on his part as would present a serious danger of ultimate injustice; and the less the danger from the direct security at the charge of the defendant, the less would be the evil produced by the vexation of counter-security at the charge of the pursuer to prevent him from contributing, through sinister design or negligence, to impose the first-mentioned vexation on the defendant.
But no evil which it is or may be possible to exclude without preponderant evil, should be suffered to pass unheeded or unprovided against, by the legislator, or that of his servant the judge. In their respective accounts with the public, every such individual instance of evil that presents itself will be to be set down under the head of loss: as the cases of most frequent occurrence will be provided for with most care, neither will those of the least frequent occurrence remain neglected; especially since, in whatever part of the field the provident eye of the legislator may have left a pit-fall unclosed, evil-doers, whose eyes will by stronger sinister interest naturally be rendered stronger than his, will be at work to widen it.
On this occasion, the antagonizing objects which, in the quality of elements belonging to the calculation in the character of elementary quantities, present a demand for consideration, may be thus stated:—
1. The importance of the service—of the effective service demanded by the pursuer at the charge of the defendant. This will vary, from that of the smallest sum of money which can be the object of demand, to that of the severest suffering to which the law has exposed men, in the hope of keeping excluded the severest evil which man is exposed to suffer from human delinquency. In this element may accordingly be seen included two others—namely, the magnitude of the punishment, and the magnitude of the crime.
2. The magnitude of the vexation to which, for the purpose of preventing the defendant from withdrawing himself from under the burthen, should he be so inclined, it may be necessary to subject him to, while the proof of his being bound to render the service remains as yet incomplete.
3. The magnitude of the inducement by which a person in the circumstances of the pursuer may be led to bear his part in subjecting the defendant to such precautionary vexation in the case in which it is undue, whether it be that the service demanded of him is not due, or that, for preventing him from eluding it, a precaution so burthensome as that which is proposed is needless.
In the case of counter-security against judicial oppression in favour of a defendant, the following are the circumstances by which the magnitude of the provisional or eventual burthen to be imposed on the pursuer for this purpose will require to be governed:—
1. The magnitude of the burthen imposed on the defendant by the direct security—the security for execution.
2. The effective responsibility, satisfactional and punitional, of the pursuer, as far as can be collected from his or her condition in life and pecuniary circumstances, or so far as already notorious or known; or by examination or inquiry directed to the purpose or the occasion in question, ascertainable and ascertained.
Consequently, when on the pursuer’s side there are parties more than one, as many different means of counter-security, if circumstances require, may be employed, as there are parties on that side.
In a punishment requiring purely public care, the government advocate being sole pursuer, no means of counter-security can be requisite.
In the case of a punishment requiring publico-private care, as well as in the case where the service demanded is satisfaction merely, without punishment, means of counter-security at the charge of the private pursuer may be requisite.
This quantity is again a compound one: its elements on the one side of the account, the profit expectable from the offence; on the other side, the loss, by the suffering to which by the commission of it, it will appear to him that he will expose himself.
Here then comes in the consideration of the counter-security exigible.
In this counter-security may again be distinguished two branches; one composed of the evil which the law may have attached to the general demand of the ultimate service in question, in the event of its proving groundless; the other, of the evil attached by it to any special demand made of the incidental service, consisting in the exaction of the security for the defendant’s compliance, or what is equivalent to it.
The person to whom the responsibility attached to the general demand, on the supposition of its proving ungrounded, will apply, is of course the pursuer. But a person to whom the responsibility attached to the special demand of the extra-security applies, may either be a pursuer or an extraneous witness; for the question as to whether the ultimate service demanded is due, and the question whether the precautionary security antecedent to full proof is necessary, are two perfectly distinct questions: between the sets of facts to which they respectively relate, there may be no connexion whatsoever.
As to the quantity of vexation necessarily attached to the situation in which the defendant must be placed, in order to secure on his part the compliance necessary to the adduction of evidence on both sides, the maximum will in general be comparatively inconsiderable: restraint on his liberty of locomotion during the time necessary for the adduction of the evidence on his side, or the time, at the end of which the pursuer will have adduced the whole of his evidence, or in failure of it, suffered the dismissal of his demand; of these two periods, the longest, whichsoever it may be. But from this restraint, temporary and short-lived as it may be made to be, evil consequences, serious in duration as well as magnitude, to an indefinite degree, may in some cases be included. Of these, lest the general conception formed of them should be inadequate, it may be necessary to bring to view a few examples.
In the view of exhibiting in its greatest possible dimensions the evil liable to be produced by a short-lived restraint on the liberty of locomotion as above, a course that would be apt to present itself is—the placing at the highest point that could reasonably be assumed, the mass of the matter of opulence capable of being thus wasted or injuriously transferred. This course would, however, be a delusive one. The greater the quantity thus brought to view as capable of being wasted or ill bestowed, the more rare would be the examples of its being in fact thus dealt with. On the other hand, the magnitude of the evil (in its first stage at least)—the magnitude of the suffering, is not by any means proportioned to the magnitude of the sum which is the instrument of it. Of the suffering produced by a loss, the magnitude is not as the absolute amount of the sum lost, but as its relative amount, relation being had to the aggregate mass of the property of the loser: to a person the value of whose whole property does not exceed eleven pounds, the loss of ten pounds may produce at least as severe a suffering as to one who has eleven thousand pounds, a loss of ten thousand; while the number of those who are susceptible of a loss of ten pounds is perhaps a hundred times as great as the number of those who are susceptible of a loss of ten thousand pounds, leaving a remainder of not less than one thousand pounds.
Perhaps by no one of those, by whom the functions of legislation have as yet been exercised, has this only true measure of good and evil, as dependent upon the matter of wealth, received due, if any attention. In his eyes, the sum which, with relation to his own circumstances, is of no importance, is absolutely destitute of importance; what is trifling to himself is, in his view of the matter, trifling in itself. Of this error what is the cause? Answer: Want of sympathy. But of sympathy in this case there are two modifications—sympathy of affection and sympathy of conception; and distinguishable as they are, intimately connected with one another are these two modifications: each is to the other cause and effect. Of that for which a man cares little, his conception is proportionably faint; and concerning that of which his conception is faint, his care is proportionably inconsiderable.
Thus much as to security: now as to counter-security. Proportioned to the danger impending over the condition of the defendant, in respect of the loss and vexation he is liable to be subjected to, by the security exacted of him at his charge as above, is the efficiency requisite to be given to the counter-security, the object of which is to protect him against that danger.
In this case, the eventual suffering, if it be adequate, that is to say, certain of outweighing the profit from the wrong, must be indefinite: in duration, co-extensive with the whole of life; for supposing it limited, though for example to imprisonment for so great a length as twenty-one years, a person who, by rivalry, for example, in trade or marriage, had been rendered an adversary to the defendant—if it were simple imprisonment, might render it worth the while of another who had nothing, to inflict the calamity on the defendant by a mendacious statement of facts, which if true would create an adequate demand for the security: and this, too, even under a full assurance that upon hearing the evidence on both sides, the falsity of the statement would be brought to light, and infliction of the appropriate punishment on the false witness a certain consequence.
By incarceration, continued down to the time at which the truth of the statement has been either proved or disproved, the testifier in question would be eventually subjected to this indispensable punishment, thus seen to be indispensable.
On the other hand, suppose the statement true, the actual suffering might, and naturally would, be confined within narrow limits; and supposing it voluntarily submitted to, as in a state of things frequently exemplified, it might be, the evil would thus by the very supposition be reduced to nothing.
Of all the several modes of affording the requisite counter-security, this is manifestly the most afflictive; and if this be not too afflictive to be employed, still less could any others be.
Thus, then, would stand the case. On the here-proposed plan, no person, for the obtaining of the security, when needless and adverse to justice, would be able to purchase a false testimony; many a person, for the obtaining of the security, where needful and conducive to justice, would be able to purchase true and honest testimony.
By imprisonment, the security may be considered as being in all cases adequate. For the person of the applicant being thus completely at the disposal of the law and the judge, the punishment is, physically speaking, capable of being screwed up in magnitude to the utmost capacity of human sufferance; and thus the evil to which, on the score or eventual punishment, the evil-doer is subjectible, is rendered preponderant over the good of the profit which in any shape it would be possible for him to reap from the evil deed—the sinister design—to whatever degree successful.
Possession-giving security, or pledge-giving security.
Placing goods in pawn for the purpose of raising money on them, as a security to individuals for the money borrowed on them, is a practice universally notorious, and as universally unobjectionable. In so far as practicable with advantage, not more objectionable should it be when applied to the purposes of justice: on the one hand, to secure defendant against irreparable vexation; on the other hand, to secure to a pursuer a chance which he could not otherwise have, for the obtainment of service due to him, in some shape in which it would not otherwise be obtainable.
To be made capable of answering the purpose, the property thus placed at the disposal of the judicatory must be of the moveable sort, and actually forthcoming, and placed within the physical power of the judge. Supposing it an unmoveable subject, the nature and character of the security would be quite different. In the character of a security, the only effect it could have, would be that of attaching invalidity to all succeeding instruments by which it was endeavoured to be transferred to other owners.
Against the acceptance of security in this shape in case of need, no preponderant objection can, it should seem, be opposed. With regard to the sensible evil, the great probability is, that it will not come into existence; for unless on the part of the bondsman certainly, and on the part of the security-giver probably, a persuasion to that effect had place, the security would not be afforded. Moreover, supposing it to come into existence, still it is not so much net suffering produced; for that which is taken from the friend of the wrong-doing pursuer, being given to the defendant, who has been wronged by him, the only net loss experienced by the national stock of happiness is the amount of the difference between the pain of loss and the pleasure of gain produced by the transfer of one and the same instrument of enjoyment.
In the case of bondsmanship, it has already been observed, no confinement of the person is in an immediate way made to have place; but in an unimmediate way, if and in so far as imprisonment for debt has place, it may have place. For in the event of a suit against the bondsman, for the obtainment of the matter of compensation, if either by inability or unwillingness, payment on his part is prevented, whatever be the imprisonment which he could suffer for a debt of his own, the same may he be made to suffer for the debt of him to whom in this way he proved himself a friend.
The course of the judge is thus to be steered between two opposite dangers, like that of the mariner between two rocks:—
1. Danger of leaving in the situation of the applicant an injured man without redress, for want of taking the measures necessary to secure forthcomingness in respect of person and property, for the purpose of giving execution and effect to the law.
2. Danger of oppression to the defendant, by vexation in the shape of imprisonment, loss of property, or evil in any such other shape as by the nature of the case it may happen to him to stand exposed to.
The first observation that presents itself is—that in the case of the applicant’s offering himself to be imprisoned, the probability of ulterior evil is in case of acceptance extremely small. The probable case is, that in his opinion the justice of his claim is indubitable; and if so, the instant that, by the examination of the defendant, this appears to be the case, the imprisonment is at an end.
True it is, that as before observed, the claim put in by him may be an unquestionably well-grounded one; yet still, if this be the course pursued for the purpose of giving effect to it, evil to the defendant, evil to an enormous amount, and thence undue, may be the result. Here then comes the case where the appropriate warning will be given to him by the judge:—
“Speak the truth; tell us whether the act of power you call upon us to exercise, would not, to the defendant, be productive of vexation in such or such a shape? (mentioning it.) For take notice, that if it would, your demand will not be granted; and moreover, you may be made effectually responsible to him, to the amount of an equivalent for the vexation thus imposed on him at your instance.”
Three rules, however, may perhaps serve him for his guidance:—
Rule 1. Parties on both sides equally sincere: of two evils, reparable and irreparable, choose the reparable.
Rule 2. Party on side—say the pursuer’s side—sincere; on the defendant’s, insincere: throw the evil on the insincere defendant, although it should be irreparable, rather than upon the pursuer, though upon his side, as far as appears, it may be reparable. Reason: By compliance with the demand, of the justice of which the defendant is by the supposition conscious, it is in his power to preserve himself from this evil: thus, in fact, it is by himself that the evil is inflicted on himself.
Rule 3. Of the magnitude of the evil, either absolute, in the case of a party on the one side, or comparative, in the case of the parties on both sides, no true conception can in any case be formed, unless the pecuniary circumstances of all parties be taken into the account.
Such as have been seen, are the difficulties and embarrassments which encompass the mind of the legislator whose operations are governed by a real regard for the ends of justice.
English practice knows of no such embarrassment. By English judges, who in relation to this part of the field, as in most others of the field of procedure, have saved the superior authority the labour of legislation, no such embarrassment has been felt. Acting with uncontrouled power in the pursuit of its own ends here as elsewhere, the fraternity have been sitting upon velvet.
So long as to those ends no counter-security seemed necessary, no counter-security would they give. Till less than a century ago, by any person, almost any other might, on paying of the price fixed to Judge and Co.—the price at which liberty was sold—be cast into prison. When at last, by the oppression and depredation thus committed, an uneasiness was felt to such an amount as to find its way to the ears of a lawyer-led, self-styled and self-seated representation of the people, a counter-security, such as it was, was established, and that security consisted in an oath—an oath, the sole panacea for so large a portion of the maladies introduced into the body politic by the hands of lawyers—the ceremony called an oath, no matter by whom, any more than under what circumstances, nor to what ends, performed.
Of this nostrum, the insufficiency to all good purposes, in whatever form it has ever been administered, is shown elsewhere. What belongs to the present occasion is the observation, that in this quack medicine consists the whole of the counter-security afforded, on an occasion for which the need of an effectual counter-security is so urgent as it has been seen to be.
Should a man say, “Should my friend fail to do what is required at his hands, take me; commit me to prison, and keep me there, till he does.” For the acceptance of no such offer would he find a door left open anywhere by judicial practice; that is to say, in an immediate way, for in an unimmediate way it has been left open with but too much effect.
In this case, then, the only sort of security that is given, is that which is given by self-subjection to collateral responsibility in a compensational shape.
This, however, does not amount to that mode of security which has just been designated by the appellation of the pledge-giving mode. Of an eventual debt the existence is indeed recognized; but of the money due by this debt, the eventual obtainment is left to the same decision, as it would be in the case of the applicant, if no such security as that which is here in question were afforded by him.
Blackstone in hand,—“By the law of this country,” exclaims the panegyrist, “no man can be deprived of his liberty, though it be but for a moment, without a charge on oath for his security!” A charge? A charge for which, he it ever so utterly and knowingly false, he by whom it is made, has not in one instance out of many a hundred, not to say thousand, anything to fear!—nothing at all, if either he be too poor or too loosely connected with the territory, to be worth prosecuting; or the victim be too poor to prosecute, or not vindictive enough, and at the same time rich enough, to tax himself to an indefinite amount, for the chance of sending off his injurer to a settlement which perhaps it is his wish to repair to. An oath?—a ceremony which all merchants,* competted to it by all parliaments, and which all good men and true, instigated by the example of all self-attested receivers of the Holy Ghost, and the frequently repeated instigation or approbation of all judges, are in the face of those same judges continually treading under foot, with conscience in their mouths—a ceremony which enables every petty tyrant, on pretence of preserving the peace, with full assurance of impunity to do with the helpless, that is to say, with ninetenths of the community, what he pleases.
[* ]A large mass of these oaths has been abolished by a recent statute. See Note prefixed to “Swear not at all,” in this collection.—Ed.