Front Page Titles (by Subject) CHAPTER XXIX.: NATURAL AND TECHNICAL SYSTEMS COMPARED. - The Works of Jeremy Bentham, vol. 2
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CHAPTER XXIX.: NATURAL AND TECHNICAL SYSTEMS COMPARED. - 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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NATURAL AND TECHNICAL SYSTEMS COMPARED.
One main feature of natural procedure is a special regard to avoid adding to the suffering of the innocent, the indigent, and the (for whatsoever cause) afflicted: corresponding feature of technical procedure, blind oppression of the innocent, the indigent, and the already afflicted.
Examples:—Indiscriminate imposition of the burthen of costs in all stages from that of accusation to that of execution inclusive.
To this head belong all fees exacted of persons imprisoned on mesne [Editor:?] process, and thence before conviction: as well as on imprisonment in consequence of conviction.
The infinitely diversified, but in most cases enormous length of time, during which, in consequence of accusation, and before trial, in cases liable to incarceration, persons are subjected to it.*
In all cases of penal procedure, the declared supposition is, that the party accused is innocent; and for this supposition, mighty is the laud bestowed upon one another by judges and law-writers. This supposition is at once contrary to fact, and belied by their own practice.
The defendant is not in fact treated as if he were innocent, and it would be absurd and inconsistent to deal by him as if he were. The state he is in is a dubious one, betwixt non-delinquency and delinquency: supposing him non-delinquent, then immediately should the procedure against him drop: everything that follows is oppression and injustice.
Of this oppression, the immediate cause is the enormous interval, so wantonly interposed between one part of the procedure and another. This is a consequence of the unfeeling disregard above mentioned; of that disregard, the original sin of judicial procedure (more or less flagrant perhaps in all countries, but more particularly in England;) the substitution of the actual ends of judicature to the ends of justice.
To such a length has this disregard proceeded as to have produced a tax, and that to an enormous amount, on what are called free pardons.† For pardon (though under English law altogether arbitrary,) there are several incontestably proper causes. As to this, see Constitutional Code, Chapter XXV. Justice Minister, § 5. Dispunitive function.
Oppression of the indigent, grievous in proportion to their indigence. Oppression in this shape has for its cause, the employment given to fixed sums, on whatsoever accounts imposed (viz. penalty for delinquency in its various shapes) by substantive law: taxes and fees to functionaries of both sorts, judiciary and professional, under procedure law.
The effect which blind fixation has in giving encouragement and birth to crime in all manner of shapes, is a topic of animadversion elsewhere. What belongs to the present occasion is the effect it has on the suffering of the absolutely or comparatively indigent, an effect which goes to the rendering the suffering of one individual, rise to some thousand times the amount of the suffering of this or that other, from a cause nominally, and in the eyes of a careless observer, the same.
The case mentioned as the case of the already afflicted, belongs more particularly to that in which the offence is not considered on the footing of a criminal one, but only as injurious, and thus producing a demand for compensation. If prevention of such offences were the end in view, matters would be so managed, as that whatever expense were imposed or left unremoved, should antecedently to decision be minimized, and after decision thrown with its whole weight (state of pecuniary circumstances considered) on the party in the wrong, in the case of rashness; with a purposed addition in case of evil consciousness.
Between operation and operation in the course of the suit, beginning with the first, whatever that may be, long intervals are established by general rules, without regard to the difference in respect of length of intervals, rendered necessary to justice by the circumstances of the several individual cases.
These intervals are fixed in regard to time, without any regard to distance in respect of place.
By general rules, transference from judicatory to judicatory and back again; thence vast delay, vexation, and expense, without any benefit: on the contrary, with great detriment to justice in respect of avoidance of misdecision, by breaking the thread of the evidence, belonging to the suit; appointing one part to be elicited by one judicatory in one place; another part by another judicatory at another place; and the other parts at the judicatory in which the suit commenced.
Mode of proceeding, by action at common law. In the three common-law judicatories of the metropolis—the King’s Bench, Common Pleas and Exchequer—the mode of procedure in this case is not very materially different.
First comes the writ. But the only end and effect of this is to cause the defendant to appoint an attorney to carry on the suit in his stead. Here the instrument of summons, warning, notice, or whatever it may be called, is at a fixed price (or at any rate at a price that ought to be fixed,) purchased of a subordinate instrument and justice-seller of the judge—the judge himself never knowing anything of that which in this way is done by his authority, and in his name.
Next comes the declaration. But this, though an assertion, and though in that character effect is given to it, is not considered in the character, nor designated by the name of evidence. It has always more or less of falsehood in it. The attorney (for the party never knows any more of the matter than the judge does) utters this falsehood knowingly and wilfully, and without any apprehension, because without any danger of suffering from it. For the utterance of it, he and his instrument and accomplice, the special pleader, are well paid: and except the receiving of this pay, the only effect of it is to elicit, under the name of a plea, the corresponding mass of falsehood and absurdity, from the attorney in league with a special pleader on the other side.
Thus continues the chain of falsehood and absurdity, from mouth to mouth, and from year to year, between one link and another; there being in particular four long intervals, one of them of the length of three or four months, lest the suit should come too early to a close. All this while no assertion made, which under the name of evidence is admitted to constitute a ground for the ultimate decision, by which execution and effect is given or denied to the portion of law on which the demand is as by the declaration professed to be grounded.
If the instrument put forth in the first instance by the defendant, in answer to the plaintiff’s declaration, is of such a nature as to come under the denomination of a general issue of which according to the nature of the demand there are five or six sorts, there is another tissue of useless falsehoods and absurdities, and the suit goes to some place in every variety of distance, between 0 feet, and about 300 miles, from the place at which it was commenced, to be tried; that is to say, now for the first time is any mass of assertion received, to which, as above, the character and effect of evidence is ascribed. Here for the first time, a functionary bearing the title of judge takes (unless by accident as hereafter mentioned) cognizance of the evidence of anything that has passed in the course of the suit. This judge is not necessarily the judge under whose authority the suit was commenced, or the power of compelling the adverse party to act in the character of a defendant, sold. For the useless course of falsehood and absurdity, months in large numbers as above, or years in small numbers, are allotted: for the elicitation of the only mass of assertion which is so much as professed to be taken for the ground of decision, sometimes not more than two or three days, for all the number of suits that can come to be heard in the same place, are allowed. Upon an average, not more than two or three times as many hours are allotted, for the only mass of information which is or can be applied to use, as the number of months or even years that are allotted to the elicitation of that which is so completely useless.
Proceedings by indictment:—Here a new scene opens. The case where the proceedings by indictment are preceded by proceedings before a justice of the peace—this case not covering more than a part of the field covered by the mode of procedure termed an indictment, must for the present be postponed. Here the scene opens with the proceedings before the grand jury. The grand jury is a judicatory not presided over by a professional and permanently existing official person, a judge; but a company, a miscellaneous company of men, selected on the presumption of possessing a certain degree of opulence: in number from 12 to 23. To pronounce a decision in favour of the demand, 12, but not less than 12, are sufficient. But here the information furnished is put upon the footing, and bears the character and denomination of evidence. Here, then, is a mass of evidence: what next becomes of it?—is it never acted upon? No, never. It is uniformly let drop, and forgotten: all the use made of it, is the enabling this majority, if such be their pleasure, to send the cause to be tried upon evidence not quite so sure of perishing, by a judge or jury in the same manner as an action as above is tried. And this in many cases with needless delay: as also in length various, but in no case so enormous as to be worth mentioning in comparison with that which in the mode of suit called action has been seen organized. Now, in this preliminary operation, by which during a course of several days perhaps, from 12 to 23 persons have been occupied in the situation of judges, besides an altogether unlimited number in the character of witnesses, what is the use? Answer: Absolutely none. What is the effect? To enable these 12 or 23 enquires, as they are called, to afford impunity without reproach to every malefactor to whom it suits their purpose to afford this encouragement to crime. Yes such is the purpose, if not of the creation of the institution, of the preservation of it; and for this purpose it is, if for any purpose at all, that the veil of secresy, by means of the sanction of an oath—that veil which originally was thrown over it for other purposes—is preserved over it.
Parties’ appearance.—Various are the ways in which the institution, by which parties are exempted from the obligation of appearing face to face in the judicatory, in the presence of the judge and the assembled public, is inimical to the ends of justice, and conducive to the actual ends of judicature.
In the first place comes the pecuniary profit, immediate and direct, to both branches of the fraternity, professional and official.
Encouragement given to the relatively and comparatively opulent, who are able without difficulty to defray the expense as above, to oppress and provoke the relatively and comparatively unopulent: from the provocation in so far as submitted to without retaliation, no self-regarding profit accrues to the lawyer tribe in a pecuniary shape: remains only the gratification to aristocratical sympathy, from the spectacle of a class of men below them, suffering under the yoke imposed upon them by the class to which they of the law-learned class do belong. But every now and then, resentment under oppression gets the better of prudence: then comes retaliation, and from retaliation, litigation, in which the party originally oppressed and injured is made defendant.
Great is the assistance which this plan of depredation receives from the darkness in which the whole system of procedure is involved by the thick cloud of technicalities. No means has any ordinary man of knowing beforehand, what the quantum of expense is, in which before the termination of the suit he has in contemplation, he may be involved.
In a common-law case (in Westminster Hall,) to a question what the expense (on the plaintiff’s side suppose) will be, he is informed it may be about thirty pounds, more or less. Nor is the information absolutely untrue, but this amount may be taken as the minimum. Of this minimum, according to circumstances, it may swell out to hundreds or to thousands.
The most remote, but upon the whole (its comprehensiveness considered,) the most productive source of profit, remains still behind. This is the endemial and all-infecting depravity, which it engenders and keeps alive in the community, by withholding the great check, by the application of which it would, in so vast a proportion, be kept from coming into existence. Were he assured of having his misconduct exposed and made public in the presence of a judge and a numerous auditory, as it would be were he under the obligation of meeting his adversary face to face, and giving immediate answer to whatever partinent questions were proposed to him, he would shrink from the exposure. As it is, at the expense of a series of lies,—from the disgrace of which he is eased by a society of lawyers, who are paid for originating and giving utterance to them—he being but the adoptive father (and not understood to be so) of them—he travels on in the road to iniquity—he perseveres in his course of injury without a check: expense is the utmost he has to fear. Thus it is, that the whole judicial system, with everything that belongs to it, is a perpetual hotbed for the raising a perpetual crop of depredation and oppression in every imaginable shape, with proportionable profit to Judge and Co. as often as it breaks out in the shape of litigation.
Such is the state of the disease. Now as to the remedy. A few words will suffice for the prescription of it. Of late years, publicity has received an unexampled extension, under the protection of a beneficent and comparatively wise Ministry,* and reformation of morals in a sensible degree is become the consequence. But in comparison of what it might be, the extent is still extremely narrow. Think what it would be, if in every instance of oppression in cases now called civil cases, the oppressor saw himself under the obligation of facing his victim or intended victim, in presence of a judge and a numerous and promiscuous auditory, and to make true answer (on pain as now of punishment for perjury) to every question which the oppressee, now no longer excluded from the judicatory by the expense of the toll-gate leading to it, might with the consent of the judge find cause to put to him. At present, opulence is to wrong in every shape (so long as individuals alone are regarded as being the objects of it) an effectual licence: in the here-proposed code, the licence will be withdrawn, and in the judicatory now become the arena of justice, the oppressor and the oppressed would meet on nearly equal terms.
In the English courts, the first act continues to be an act of extortion and oppression—of extortion practised on those who have money to pay for the chance of what is called justice.
By any one whose desire it was to do justice to the demand, would a refusal be given to hear what the demandant had to say on the subject?—to hear whether upon the face of his statement there was any ground for the demand—any just and sufficient cause, sufficient to afford a warrant for the vexation and expense?
No: he would hear what the applicant had to say; and, upon so doing, would in many instances do complete justice, or at any rate learn more of the real state of the case, than an English judge—common-law judge and equity judge put together—will (unless the defendant chooses it) at the end of eighteen months.
By this one act, a double injustice is perpetrated: injustice in the shape of extortion and oppression—extortion practised upon the man or the woman who is already injured—oppression on the man or the woman whose liberty is sold to the demandant, without inquiry, at the fixed price—the judge, for the sake of the profit received by himself, lending himself as an instrument to the profit of his accomplices and confederate worshippers in the professional branches of the law.
The judge’s immediate profit from the extortion—though several times the amount of that price for a day’s labour, which thousands and scores of thousands would be happy to get and cannot—formed at its origin a very considerable proportion of the amount of that income which would suffice for the subsistence of a family during a whole year. In the interval between that time and the present, that price has not been raised in any proportion approaching to that in which the value of money has fallen. But to the multitude of suits (the result of the prodigious increase of wealth—of wealth absolute and relative), what has been lost in the value of such items, has been amply compensated for by what has been gained by the increased number of those same items.
For the facility of giving exercise to oppression in this shape, where oppression is the object, not so much as an account, true or false is received or asked for, at the hands of the purchaser.
Afterwards, indeed, when the proposed defendant, in jail or out of jail, has by more fees made known his intention of appearing in that character, an account is made and received. But this account is made, not by the party himself, but by an attorney, who by the course of the court has been obliged to compose it of a parcel of lies, with only just so much truth in it as serves for a pretence for compelling the exhibition of a similar composition called a plea; the parties on both sides, for months or years, are kept thus at a distance from one another by the judge, while at long-protracted and altogether useless intervals, they are compelled to employ the lawyer to carry on the war of words: being composed of a mixture of lies, abuse, and nonsense, with or (as it may happen) without a small particle or two of relevant or irrelevant truth interspersed by accident.
Elicitation of evidence. Natural modes, oral or epistolary in all cases, according to circumstances, in respect of delay, vexation, and expense.
Technical modes, diversified according to circumstances which make no difference with relation to aptitude or probability as to the correctness and completeness of the evidence elicited.
Unapt sources of diversification:—
1. The power and consequent denomination of the judicatory in which the elicitation is performed; i. e. whether a common-law court, or an equity court.
2. The relation borne by the examination to the suit. In a common law-court, no party on either side examined at all: in an equity court, a party on one side alone examined;—to wit, the defendant’s side; and be examined in the epistolary mode only. An extraneous witness examined in the oral mode alone; and in this case in the utmost secresy, by the examining judge alone: no interrogative matter for counter-interrogatories, admitted to be given to the parties on both sides, or to a party on either side.
Natural procedure:—Form of litis contestation, from beginning to end, exceptions excepted, oral. Exceptions are—1. Impossibility by reason of local distance; 2. Preponderant evil, in the shape of delay, vexation, and expense.
Technical procedure:—In equity practice, scriptitive, or say epistolary. Sole case in which oral discourse is received, that in which the examinee is either an extraneous witness, or a party litigant examined in the character of an extraneous witness.
Of the two effectually distinct functions, the requisitive and the probative, the exercise is mixed up in the same document—to wit, the bill.
The pursuer states the service he requires, alleges supposed facts, for the purpose of forming an efficient cause of right or title to the service demanded, or say required, at the hands of the defendant, and eventually at the hands of the judge, and exercises the evidence-elicitative function at the charge of the defendant. The evidence delivered, is what is called the charging part of the bill, containing in it, of necessity, a large portion of false and mendacious statement: the judicatory refusing all relief to every person who will not add to his requisition, a tissue of false and mendacious statements, known so to be by the judge.
In the common-law practice, the litis-contestation is called pleading; and that which is productive of delay, vexation, and expense in a special degree, special pleading.
Equity practice, to its own peculiar mode, adds incidentally the common-law mode. This is the case as often as, either instead of, or in conjunction with, what is called his answer, the defendant’s lawyer delivers in, what is called a plea, or what is called a demurier.
If and in so far as justice—that is to say, giving execution and effect to the correspondent portion of the substantive branch of the law—is the end in view, no part of the matter found in any of the books, under the head of pleading, or special pleading, will have any place in a procedure code having that same for its end in view: no portion is there of it, that is not completely useless. For the purpose of giving execution and effect to that same branch of law, or any part of it, no more information will be to be had from it than from the Koran.
Of the evidence, the judge commonly takes abridged memorandums; of the argumentation, none. Of these abridged minutes, in general no use is made; they are waste paper and as such dealt with. For the moment, they serve to assist his recollection when giving his charge to the jury.
The sole case in which any use is made of them, is when application is made to another judicatory, without a jury, for a new trial, by and with another jury. In this case these minutes are conveyed, somehow or other, from the first judicatory to the second: the argumentation not.
In this case, instead of an appeal from the inferior judicatory to a superior, on the ground of the evidence and the argumentation delivered to the inferior judicatory,—is substituted an inquiry grounded on mutilated minutes, for the correctness and completeness of which, nobody is responsible,—for the purpose of a determination, whether evidence from the same source shall be elicited by another such inferior judicatory—no use whatever being made either of the argumentation or the evidence elicited by the inferior judicatory thus tortuously and awkwardly appealed from.
If to make good your claim, it happens to you to have need of your adversary’s confessional evidence, you cannot have it without a suit in a judicatory called a court of equity: nor, in that judicatory, to any the most simple question can you make sure of an answer from him in so short a time as a year—to a question to which, if put to him by you in the presence of a judge, as in a small-debt court called a court of conscience, a single moment would suffice you for extracting from him an answer, and that an adequate one.
Think of a nation in which a man at the head of the law, will have the assurance to assert on all occasions, that justice was and is the object of this system.
Special pleading is a system of operations, by which, instead of the conjunct appearance of the parties in the first instance before the judge, making their respective allegations subject to responsibility compensational and punitional in case of falsehood, they are kept at a distance from the judge’s chamber, for the purpose of causing to be delivered, at intervals of weeks or months, their several allegations, in the form of ready written discourses penned by their respective professional asssistants, and without responsibility in any shape in case of falsehood. Special pleading is here utterly excluded. What is it? Answer: From beginning to end, a perfect nuisance; created and preserved in the teeth of the most obvious and recognised principles of justice.
In case of mendacity, or temerity of assertion, there will be responsibility, compensational and punitional: of evidence, the elicitation performed vivâ voce, by and in the presence of the judge. Throughout the whole course of the elicitation, questions to be put arising out of the answers. This is the course pursued wherever the obtainment of a correct, clear, and all-comprehensive conception of the appropriate facts belonging to the case, is really an object of desire. Under the actual system, the same individual in the character of a party, is constantly exempted from that responsibility to which that same individual would, in the character of a witness, be as constantly subjected. To what end, but that, under favour of this licence (coupled with the exclusion from the eye and the ear of the judge, and the scrutiny of cross-interrogations, with the aid of questions arising immediately out of the answers,) he may be not merely invited but forced to that course of false assertion, with factitious delay for months or years, out of which profit to the amount of hundreds or thousands of pounds is by this system of mendacity, fraud, and deception, extracted.
The system and course of procedure has for its professed object two things:—1. The obtaining a well-grounded assurance respecting the facts alleged on both sides; 2. The ascertaining the bearing of the law upon the facts, the existence of which is, on the ground of the several allegations, believed by the judge. Now then, as to the ascertainment of the facts. If this course were really conducive to the professed end in any one case, so would it be in every other: if in any one sort of judicatory, so would it be in every other. Conceive it now transported into the bosom of every family—into every committee of inquiry in the House of Commons—into the judicatory of every justice of the peace, and every sessions of justices of the peace. Suppose this course of inquiry, and no other, employed—But in vain should we tax our imagination in carrying it higher than the bosom of every family: for how many weeks together—for how many days together—upon this footing, could human society continue?
A project was on the carpet for giving to Scotland the benefit of English special pleading. The jury-court, it seems, cannot go on without it. Great indeed must be the embarrassment, thick the confusion, portentous the expense, when the enormity of it is too great even for those whose profit rises in proportion to it. Not much less, perhaps still greater, must be the embarrassment produced by the endeavour to substitute to this deleterious remedy another drawn from the same pharmacopœia. The project is altogether a curious one: by statute law to establish common law. A rather more obvious, more simple, and if justice were the object, a more effectual (or rather the only effectual) one, would be, by statute-law to establish statute-law. The only objection is, that the mode of conducting the business would (if made as it ought to be, and could be, made) be too effectual. To uncognoscibility, it would substitute universal notoriety; to the maximum, the minimum of vexation, delay, expense, and consequently, lawyers’ profit.
An oblique and indirect or fictitious way, is the only way in which, in this mode, a conception, such as it is, as a rule of action, can be grounded upon; the assumption is, that by competent authority a rule of action has been established; and upon this assumption, false to the perfect knowledge of all those who build upon it, is grounded, on each occasion, the power they assume and exercise.
For these fifteen years past, the utter impossibility of accomplishing on this plan, in any tolerable degree, the ends of justice, has stood demonstrated: but not those ends—on the contrary, the ends diametrically opposite to them are on this occasion, as on every other, pursued where the workmen are lawyers, and, by the supineness of the people, suffered to take their own course.
Think of the impudence, as well as the wickedness of these men, so unaptly decorated with the name of judges, sitting with the doors of their judicatories shut against the parties;—the unhappy individuals kept out of sight and speech of each other, and of the judge, even when living both of them next door to the justice-chamber. And to what end? To what, but to fabricate a pretence (how shallow it is, every honest mind must see) for setting (at their expense) their respective lawyers to pelt one another with these masses of absurdity and nonsense.
Books upon books have been written and published, to show how this trash may be manufactured to the greatest advantage.—What a quantity of talent has been thus wasted!
Of this series of altercation, the whole use and purpose is the furnishing a pretence for the exaction of fees from the suitors, for the emolument of the lawyers of all classes and grades. Neither to the number of the instruments by which this course of altercation is carried on, nor to the length of any one of them (nor consequently to the expense of the whole,) are there any certain limits. As little are there to the length of the delay thus organised and manufactured: the whole of it being completely useless. Many are the thousands of pounds to which the expense—not small the number of years to which the delay—has thus been known to be swelled.
All this while, not a syllable about the matter does the judge ever deign to know. The fees go some of them to his own immediate use, others to his profit in the shape of patronage, through the hands of his instruments and nominees; and for this remuneration not an atom of service does he perform.
The first and only occasion on which, if at all, any part of this altercation comes within his cognizance, is, when the stock of useless matter thus spun out comes at last to be exhausted, a determination comes to be taken on the subject of the whole together. Even then, not a tenth part of the contents of this lay stall is presented to the eyes or the ears of the judge. By the advocates on each side, those scraps are picked out, which in the hurry of the moment are regarded by them as best suited to their respective purposes, and the remainder is consigned to that neglect to which the whole is so well entitled.
In some cases, the string of altercation terminates in what is called an issue; and in these cases there is a question of fact which finds its way to another judicatory in which a jury is presided over by a judge.
Before me lies a work on the subject of special pleading, intituled “On the Principles of Pleading in Civil Actions.”
On looking into this work, one sentiment that presents itself is a sentiment of regret called forth by the idea of the prodigious waste of mental labour and talent there employed, applied to a subject essentially worthless, and destined to disappear as soon as the light of truth shall have shone upon the subject. Raphael, painting his cartoons al fresco, upon a frozen pannel, is the image that presents itself.
By this work of his, the author superseded and converted into waste paper all the works of which before him the labour had been applied to this field. His turn it will next be, to be involved in the same fate.
Of no lover of justice can it fail to be the wish and desire to see applied to the furtherance of justice, that talent, which without any imputation on the author has hitherto had no other occupation than the giving facility to the occupation of obtaining emolument, by the giving increase to expense, of which injustice is the real fruit, under the name of justice.
Ask how much written pleadings there should be in a suit! Ask first how much chaff and powdered bones there should be in a quartern loaf!
Except for special and adequate reason, in every case, in every sort of case, for giving execution and effect to the portion of law in question, the course of procedure should be in everything the same: no difference in any one case, compared with any other: much less a difference, at the option of an individual on the pursuer’s side.
This feature of natural procedure, compare it with the correspondent one in English technical procedure.
Over a bottle, or without a bottle before them, between a priest of the established religion, and a lawyer, a dispute takes place, and a scuffle ensues. It occurs to the priest to make an instrument of revenge out of this, and to betake himself to the law for vengeance.
The options that lie before him are—
3. Information, filed in the ordinary mode, or by leave obtained of the judge.
4. Information ex officio, filed by the attorney-general without need of such leave.
5. Libel in the ecclesiastical court, termed also spiritual court.
Suppose an information applied for in the ordinary way, and refused:—the attorney-general after this, would he take upon him to file an information ex officio, without leave applied for to the court. Who can say? He may or may not: it depends upon himself. If the assailant be a duke, and the person assaulted a priest, and nothing more,—probably in this case the attorney-general would not: but suppose the assailant a bishop, and the person assaulted, a Church-of-England priest, a Presbyterian layman, or what is worse, a Unitarian priest: very different now is the aspect worn by the case. Lord Northington, or Lord Thurlow either, would have damned them both, and bid them get about their business; but Lord Eldon has no curses—but great doubts.
In every one of these cases, the fact being by the supposition one and the same—not only the mode of proof, and the shape in which the evidence is elicited, is different, but even the source from which the evidence is admitted.
An action the priest or bishop cannot maintain, unless he has testimony other than his own at command: or unless he has the means of affording adequate inducement to some one, to give his evidence to the attorney, that it may be put into the brief by which the instructions are given to the advocate called counsel—through whose lips for this purpose it has to make its way to the ears of the court.
What is it that he asks for? Is it money? Though it be but a farthing, nothing he can say to get it is, even if it be said under the sanction of an oath, fit to be believed: he is accordingly excluded from saying it. Is it revenge? Everything he can say for the hope of gratifying the different passions, is credible.
Antecedently to his visit to the grand jury, he may have made a like visit to a justice of the peace, complaining to him of the breach made of the king’s peace. Here, then, is another judicatory.
Never yet was exemplified, it may be said, a case thus diversified as the above. Probably not: but if not, it really is not the fault of the law.
Record, in natural procedure—Record, in technical procedure.—The instrument denominated a record—what, if justice were the end in view, would be the contents of it? On the part of the judge, the definitive decree, with an account of the execution and effect given to it; and the operations, as well on the part of the judge as on the part of his subordinates, and the parties and extraneous witnesses (if any) included. In particular, the evidence on which the several operations performed by the judge had been grounded, would be introduced by the demand which had been made by the pursuer, and the passage or passages in the text of the law on which that demand had been grounded. If so it had happened that debate had taken place as to the import of the alleged portion of law, for the applicability of the facts proved on either or both sides, in relation to it,—here would be a question of law; and the interpretation put upon that occasion by the judge upon the law, would form an incidental mass of matter, proper to be entered. But this is a sort of occurrence which, comparatively speaking, would be rare. In a great majority of cases there never has been, even in the most unsettled state of the law (still less will there be under any tolerable improved state of the law), any discussion respecting the bearing of the law upon the facts. The common run of debts and common assaults are the occurrences by which the correspondent majority of the number of suits will have been produced. The substance of the matter, of which in every case the bulk of the record will be composed, will be the peculiar and characteristic part of the matter (being in each individual case different,) showing the ground on which the decree pronounced in that same individual case was founded. Other miscellaneous matters—such as any delay that had been produced either by the nature of the case, or by reluctance on the part of parties or witnesses, or misconduct on the part of judicial subordinates—will, for one purpose or other, need to be entered upon the record; but they will be merely casual and collateral to the direct purpose of the suit. That which will compose a constant and necessary part of the suit in every case is the matter of the demand itself—the matter of the defence, if any, and the evidence on which the demand and the defence, if any, was grounded. Thus much as to the matter belonging to the record. Now as to the matter, of which under the technical system of procedure in use in English practice, the instrument called a record is composed. Take in the first place the common-law courts—for in the sort of judicatories called equity courts, the contents of the instrument called a record (if indeed in these courts there be any instrument to which that denomination is authoritatively applied,) are altogether different; an unrebuttable presumption this against one or the other, and a presumption of no inconsiderable force against both.
But to begin with the common-law courts. How stands the matter with regard to the evidence?—what is done in relation to it? Answer: Absolutely nothing. On this subject, what it presents is, total and constant silence. Of what nature, then, is the matter of which this is so regularly framed and carefully preserved document is composed? Answer: With the exception of the decree called here judgment, which in each class of cases is the same, and a demand (which is never expressed in the terms in which it comes from the party whose demand it is,) scarce anything but what is either irrelevant, or to the knowledge of everybody, in every case, false. As to the judge, whose judgment it purports and pretends to be,—never, unless by some extraordinary accident, has it come within his cognizance. It is made for him by a sort of machinery, like the turning of a wheel.
As to the incidental occurrences before alluded to, entry is indeed, for the most part, if not in every instance, made of them: made, but on what instrument? Not on the record, but on this or that book, distinct from it, and not referred to in it. The consequence is, that to almost every purpose, the information afforded by the record, amounts to next to nothing. Not so as to mischievous purposes; for purposes of that description are served by it in abundance: mischief to the parties by the load of needles and useless expense—mischief to the whole community by the veil of obscurity and mystery with which it contributes to cover the whole system.
Of no breach of duty, however numerous such breaches may have been on the part of any of the actors of the judicial drama, does it afford any information: consequently, to no such breach of duty does it afford any check. Not a particle does it contain of evidence; but at the same time, not sparing is the quantity of matter composed of allegations: in these allegations, however, the matter is a medley composed of a mixture, in indistinguishable proportions, of truth and notorious falsehood. Nothing do these pleadings (such is the name by which they are distinguished)—nothing do they contain of that matter, on which, under the name of evidence, the decree will have been grounded. What they are composed of, is, inferences, drawn, on both sides, by anticipation from the evidence expected, or pretended to be expected, to be elicited.
A proper record, as has been seen, would be a plain statement of every relevant occurrence that happens to have taken place in the course of a suit.
Sentence.—Special rational causes excepted, the imperative decree, or say the sentence, should be pronounced at the same time with the opinative decree.
As in non-penal, so in penal cases.
Special cause may be—time necessary for inquiry into the circumstances of the parties.
In English practice, when the means of repression is determined by the jury, as it is when compensation alone is awarded, the jury are never allowed a moment between the pronunciation of the opinative and that of the imperative decree: the opinative and imperative are one and the same.
But when the means of repression is determined by the judge, as it is where punishment, under the name of punishment, is awarded, an interval of days, weeks, months, perhaps even years, is made to have place between the pronunciation of the opinative decree by the jury, and the imperative by the judge.*
All this while, the defendant is kept in a state of mental torment: of costs, increase to a considerable amount is unavoidable; and to the quantum of the amount, there are no limits.
This determination, which the unlearned are held capable of coming to, and forced to come to accordingly at once,—is it that the learned judge, after his twenty years’ lucubrations, is unqualified for coming to?
No: but the true and only cause of this uncertainty is the profit which it puts into the pockets of the lawyers of both classes, professional and official; and the power—the arbitrary and tyrannical power, which the judges have been suffered thus to place in their own hands.
In natural procedure, no needless concurrence necessitated.
In technical procedure, needless concurrence abundantly necessitated.
Examples of needless concurrence necessitated, are—
1. In non-penal law. In conveyancing: sinecure trusteeships.
Consequence, needless delay, vexation, and expense, in obtaining concurrence at the hands of the original trustees; much more at the hands of their representatives.
2. In procedure. Equity procedure: necessitating the concurrence of a defendant in the transfer made of his property, instead of making the transfer uninterventionally by the authority of the judicatory. Consequence, delay, &c. as above. To evilly-conscious defendants, a premium on non-compliance.
3. In penal procedure, under Rome-bred law: rendering the confession of the defendant necessary to his punishment; and for the obtaining of this confession, applying torture. Consequence, in case of inability to endure the torture, infliction of punishment on the innocent: in case of ability, impunity to the guilty, in respect of ulterior punishment.
Natural procedure. The judge, on issuing a mandate to any person, suitor or non-suitor, requiring him to do or to forbear from doing, in furtherance of justice, a certain act, to particularize beforehand the remedy or remedies, punitional or satisfactional, or both, of which, at the charge of the individual in question, application will be made, in the event of non-compliance with such mandate.
Technical procedure. For the purpose in question, judicial power needlessly employed in causing or endeavouring to cause the individual on whom the obligation is intended to be imposed, to give the appearance of consent by his signature attached to an instrument for that purpose appointed.
The evils attached to this practice are the following:—
1. Delay, vexation, and expense,—partly natural and unavoidable—partly fictitious; resulting from the performance of this needless and useless operation.
2. Needless and useless complication.
No reason is there, why in one case more than in another, consent on the part of a suitor should be necessary to give validity to the exercise appointed by the legislature to be given to the functions of a judge.
Natural Procedure—investigatorial process by means of indicative evidence—needful alike in all cases—employed in all cases.
Technical Procedure—confined to certain particular cases.
Natural. For each subsequent operation, time fixed according to the circumstances of each individual case, from the examination of the party, or his proxy, then present in the judicatory.
Technical. For each sort of operation, one and the same period of time fixed by a general rule. Thence, infinity to one, the time is either more or less than sufficient: if more than sufficient, the consequence is needless delay; if less than sufficient, needless expense employed in the endeavour, successful or unsuccessful, to obtain further time; there is also needless delay in this case.
The power of depriving another of his liberty, which the technical system gives to any one who applies for it, and without responsibility on his part, the natural system offers, it is true, to any one, but in no case without the responsibility by eventual punishment to which he is subjected in case of mendacity: so in the same manner is any extraneous party who is called as a witness: to which responsibility, when the case requires it, is added the obligation of finding security, either real, by property of his own, actually pledged by himself, or by a conjunct obligation entered into by a juridical bondman, who binds himself to concur in affording compensation to the defendant, in the event of any abuse of power exercised at his charge.
The female sex, that part of it which is in the married state, are more strongly interested in the establishment of the natural system of procedure, than are persons who belong to the male.
For cruelty on the part of the husband, at the charge of the wife, no relief is so much as professed to be given by any judicatories but those which belong to the ecclesiastical branch. But inadequate as is the remedy thus applicable, so great is the expense of application for a chance of it, as of itself suffices to establish a denial of justice in nineteen out of every twenty cases, not to say of ninety-nine out of every hundred.
The class which, being most exposed to injury in this shape, and as such is most in need of remedy, is the class to which all remedy is denied.
The fundamental principles of natural procedure are,—
1. Publicity maximized.
2. Exclusion of middle-men maximized.
3. Initiatory applications, not epistolary, but oral, maximized.
4. Penal security against falsity universalized, with warning of ditto.
5. No one made defendant, but on determinate and substantial grounds.
6. Epistolary statement receivable, to save delay and vexation, but never definitive; oral interrogation always addible.
7. Mode of procedure for the discovery of the appropriate truth, the same in all cases.
8. Delay, vexation, and expense, minimized in all cases.
The fundamental principles of technical procedure are—
1. Publicity minimized.*
2. Number of middle-men maximized.
3. Initiatory application by party to judge, not admitted.
4. Penal security against falsity,—extent minimized: distance from commencement of suit, maximized.
5. At the pleasure of every plaintiff, any person made defendant, antecedently to the allegation of any grounds determinate or undeterminate.
6. Recently established exception excepted, and that flagrantly inadequate, liberty of any man violated by confinement at the will of any man in the character of plaintiff.
7. Mode of procedure, on pretence of the establishment of truth, different in different cases.
8. Aggregate of delay, vexation, and expense, maximized. Fictitious delay established in an infinity of proportion, according to occasion and pretence.
[* ]This applies with more or less force to the whole of England not within the jurisdiction of the central criminal court.—Ed.
[† ]These free pardons were formerly under the Great Seal. The expense of obtaining these documents was so great, that they were seldom or never applied for, except when in the course of some suit or other it became necessary to prove the fact of the pardon of the individual in question. Now, by a statute passed during the reign of George IV. (7 & 8, c. 28, § 13), a pardon under the sign-manual has the same effect as if it were under the great seal. Pardons so attested are, I believe, granted without any charge.—Ed.
[* ]Written December 1826.
[* ]This observation chiefly applies to those criminal cases which are tried in the Court of Queen’s Bench, and not to the great mass of felonies and misdemeanors tried in the ordinary criminal courts, where the punishment is usually awarded immediately after the verdict is pronounced.—Ed.
[* ]See Judge Bayley’s attempt to shut up police-offices in particular, on the ground that they are not courts of justice, Morn. Chron. Oct. 31, 1824. Or see Morn. Chron. 2d Nov. 1824, “Manchester—Reverend Magistrate Hay’s Charge to Grand Jury.”