Front Page Titles (by Subject) APPENDIX A.: INITIAL SKETCH OF THE PROCEDURE CODE. - The Works of Jeremy Bentham, vol. 2
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APPENDIX A.: INITIAL SKETCH OF THE PROCEDURE CODE. - 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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INITIAL SKETCH OF THE PROCEDURE CODE.
The procedure code, as well as the judiciary establishment, has for its business the avoidance of the evils opposite to the several ends of justice.
Opposite to the declared ends are—1. Misdecision. 2. Non-decision in cases which call for decision.
They accordingly have for their common business the providing of the requisite securities against these same evils.
To know and provide those securities, it will be necessary to ascertain the cause of these same evils.
These causes may be distinguished into—
1. Those which are liable to have their origin in the state of the judicial establishment.
2. Those which are liable to have their origin in the system of procedure.
Non-decision has for its causes—
1. Non-institution, in cases which require institution.
2. Non-termination, in cases in which institution has taken place.
Causes of non-institution are—
1. Apprehension of partiality to the prejudice of the pursuer’s side.
2. Inability to defray the expense.
3. Apprehension of expense, vexation, and delay, to an amount preponderant in value over the chance of success.
Causes of non-institution having their seat in the judicial establishment:—
1. Insufficiency in the number of the judicatories.
2. Multitude of judges in the same judicatory: apprehension thence, of needless delay on the several occasions for decision.
Causes of non-institution having their seat in the state of the procedure code:—
1. Magnitude of the expense of institution.
2. Apprehension of the magnitude of the expense, where there is much delay, incident to continuance, and preparatory to decision and execution, in favour of the pursuer’s demand.
Causes of delay having their seat in the procedure code, with their correspondent securities:—
1. Fixation of time for the several steps.
Correspondent security against delay: exceptions excepted, reception and accersition of parties, witnesses, and evidence-holders in each suit, as soon as the time in the several cases admits: so as not to accerse or prehend any individual earlier than necessary.
2. The not having elicited in the most instructive manner the whole mass of the evidence bearing upon each fact in question.
Correspondent security: giving to each judge the faculty and the obligation of eliciting, in that same most instructive manner, as much as possible of that same mass of evidence, the whole if possible: except in so far as the expense, vexation, and delay, necessary to that effect, shall exceed the advantage gained in respect of superior probability of right decision: instead of assigning to one judge the elicitation of part of the evidence, and to another the elicitation of other parts; or to one and the same judge the elicitation of one part of it in one mode, to wit, a superior mode, and of other parts in another—to wit, an inferior mode.
The advantage, from the giving to one and the same judge who is to decide upon the fact in question, the whole of the evidence as above, the whole of it in the most instructive form,—will be pointed out elsewhere.
Admit at the same time the non-necessity of giving to the ultimately deciding judge the whole of the evidence, in so far as one part relates to one fact in question, another to another not connected with it.
At the same time, where it can be done without preponderant disadvantage in respect of delay, vexation, and expense, of course it will be best on every account, that the ultimately deciding judge should have for the basis of his decision all the several facts in question bearing upon the suit, together with all the masses of evidence respectively bearing upon them.
State now the wanton departures from this rule on the part of the English-bred and Rome-bred systems of procedure; with the causes of these aberrations—to wit, the inaptitude of the authors of the system, in respect of moral and intellectual aptitude: principally moral; they deriving to themselves a sinister advantage from the aberrations.
English-bred law. Aberrations.
I. Divers judicatories, employing each of them a different mode of procedure in this respect: whereas the course of procedure best adapted to the purpose of extracting the truth of the case—the most instructive mass of evidence in relation to the several facts,—is in every individual case one and the same, exceptions excepted.
1. Proceedings in case of an action in King’s Bench, Common Pleas, or Exchequer.
2. Proceedings in case of an indictment in King’s Bench.
3. Proceedings in case of an information in King’s Bench.
4. Proceedings in case of an indictment in the Old Bailey, or on the circuit, in the court of Oyer and Terminer, or the General sessions of the peace.
5. Proceedings in the Rome-bred ecclesiastical and admiralty courts in a penal case.
6. Proceedings in the Rome-bred ecclesiastical and admiralty courts in a civil case.
II. In one and the same judicatory, proceeding in different courses in this respect, and accordingly giving to the suit in those several cases different denominations.
1. In the King’s Bench, proceeding by action, indictment, and information: over and above the cases in which the judicatory exercises a controul over other judicatories.
2. In the Exchequer, proceedings by action, and by bill in equity.
III. In a suit, on the occasion of one and the same individual demand, transferring the suit from one judicatory to another in all cases indiscriminately, and without any reason derived from the particular circumstances of the individual case.
1. In an action, causing the suit to be commenced in the King’s Bench at Westminster, and from thence carried to the court of Nisi Prius, either in Westminster or in London, at the sittings in or after term, or in some country town, at the court of assize, sitting no more than twice a-year for a few days in each town.
2. So on an indictment or information.
On the above occasions, at the commencement of the suit, in some instances proceeding without evidence: in others, with incomplete evidence on behalf of one side of the suit: in others, with incomplete evidence on the other side of the suit.
1. On an action proceeding without evidence: allowing the pursuer to harass the defendant, and keep him in hot water for half a year, without having made any ground for his demand.
2. On an indictment, at the commencement eliciting evidence on the pursuer’s side only: that evidence not perfectly elicited, and when elicited, not made any use of, on the occasion of the ultimate decision: made use of no otherwise than to the purpose of determining whether the suit shall go on, and evidence be elicited in a perfect manner, at Nisi Prius, half a year afterwards.
3. On the occasion of an information, commencing the suit by evidence, but by evidence elicited in the most uninstructive mode, and that evidence wasted by not being employed in forming the ground for the ultimate decision.
4. On the occasion of a bill in equity, eliciting evidence only on behalf of one side of the suit, to wit, the pursuer’s, and that only the defendant’s disserving evidence, the allegations of the pursuer not being admitted as evidence, but being knowingly and purposely allowed and required to be false: the elicitation of the evidence of extraneous witnesses being postponed to an indefinitely distant period, and then elicited in no other than a mode eminently uninstructive.
In the establishment of these arrangements, immorality has soared to such a pitch of impudence, as will be matter of astonishment to any future age, in which these abuses, and the others connected with them, shall have received a remedy.
In the case of an action at common law, subjecting any man, at the pleasure of every other man, to the torment of litigation for an indefinite length of time—for years together, if such be the tormentor’s pleasure, without requiring any ground whatsoever.
In the case of a bill in equity, not only not requiring on the part of the pursuer any ground whatever, in the shape of true evidence, but admitting and even forcing him, on pain of miscarriage, to launch out into a string of false allegations, which being notoriously false, are not, and cannot be employed in the character of evidence.
Order of elicitation, as between evidence-holder and evidence-holder:—
No fixed order can be otherwise than mischievous. What order will be most convenient it is impossible to know, otherwise than from the particular circumstances of each individual case.
Rules and circumstances on which the choice depends:—
1. Of the evidence of two evidence-holders, A and B: if the evidence of A, and the effect of it, can be understood without reference to the evidence of B; while the evidence of B cannot be understood without reference to the evidence of A, let the evidence of A be first elicited.
If while neither can be understood without the other, or each may be understood without the other, while, in consequence of distance or ill health, one of them can be elicited before the other, let that one be first elicited, which, as above, is capable of being first elicited.
The first evidence capable of being elicited will of course be that of the applicant. But after that, it is impossible to decide correctly by any general rule, whether the evidence of the proposed defendant, if there be but one, or the joint demand or the evidence of a co-interessee of the applicant, will be to be heard to most advantage.
In regard to a defendant, all you can say in favour of his priority, as between him and a co-interessee of the applicant, is, that a decision should not be given to his prejudice, without his having an opportunity of being heard.
But this applies not without exception, to any but penal cases. For in civil cases, to a considerable extent, decisions affecting a defendant’s interest will always require to be given in cases in which, by reason of distance or other causes, he cannot have been heard: only, in these cases the decision should be provisional, being liable to amendment in his favour, in the event of his showing sufficient cause.
In the English system, one circumstance that contributes to keep out of sight the demand for an indefinitely variable order of elicitation, is the vast distance between the time of the delivery of the demand, and the earliest time at which any ultimately employable evidence can be received; to wit, the half-year between the completion of the chain of pleadings, and (in country causes) the time of the circuit. So vast is this time, that in most cases all parties on both sides have time to prepare and produce their evidences. But though, in perhaps 99 instances out of 100, this time is some dozen or some hundred times more than sufficient, cases there will always be, in which it is not so much as sufficient. In these cases, application will be made for further time: and if the case be, that the defendant is in the wrong, and his mind in a state of evil-consciousness, here is another half-year at least gained to him for the enjoyment of the fruits of his iniquity,—to take advantage of his own wrong,—while the lawyers of both classes, official and professional, are made sharers in his sinister profit, by the price at which they concur respectively in the selling to him this undue advantage.
Waste of evidence coupled mostly with the elicitation of evidence in an unapt shape:—
1. Testimonial evidence elicited in its best shape, is elicited by vivâ voce reception and undiquâque interrogation, accompanied part passu with minutation, followed by recordation.
2. Elicited in its next best shape, it is elicited by scriptitive reception and undiquâque interrogation, in the same manner, backed by the assurance of the witnesses being upon occasion subjected to interrogation as to the same points vivâ voce.
Evidence in its best shape is not yet at its maximum of aptitude, unless subjected to amendment upon occasion—not only to reelicitation in that same best shape, but to elicitation in the scriptitious shape.
Of course, no such supplemental evidence ought to be elicited without mandate from the judge, with or without previous opportunity afforded of opposition.
When evidence is wasted, the waste is the less to be regretted, when, being taken in an utterly unapt shape, or a less apt shape where it might have been taken in a perfectly apt shape, the shape it is taken in, is one in which it ought not to have been taken.
1. In the grand-jury hearing, antecedently to trial on indictment, what evidence is taken, is taken in the secret mode, without opportunity of counter-interrogation, or counter-evidence.
2. On the occasion of the equity mode of elicitation by bill, concluding with interrogatories, although, so far as regards the interrogatories, the shape is not inapt, yet being necessarily introduced by a tissue of notoriously mendacious assertions, it is in so far elicited in a supremely unapt shape.
In the affidavit shape, it is elicited subject to counter-evidence in the same bad shape, but not subject to counter-interrogation in any shape: much less subject to subsequential and emendatory undiquâque interrogation, in the oral shape. In this case, the shape in which it is received is one, in which it ought not on any occasion to be received.
In some sorts of suits, it is received in no other than this bad shape, and forms the sole groundwork which the ultimate decision can ever have. These are—
1. In civil cases, in all the judicatories, all contestation relative to incidental demands, made on the occasion of a suit, except that in which the ultimate decision, called the trial, has place.
2. On an information, it has place on the occasion of the preparatory inquiry, whether evidence elicited in the only good shape shall be received.
Here it is elicited altogether in waste: the more expensive mode of inquiry, by evidence in this its worst shape, being employed antecedently to the eventual employment of evidence in relation to the same facts, elicited in the best shape.
On the occasion of the preparatory examination by a justice of peace, in a case of felony, the evidence is in the first place taken in the best shape; but the whole of what on that occasion is taken in that best shape, is taken in waste, not being suffered to be employed on the occasion of the ultimate inquiry called the trial.*
On every account, the sinister interest of the judges is engaged in preserving the custom of taking the evidence in its worst shape: nor is it exposed to doubt, that it is by that same sinister interest, that the custom of taking it in those bad shapes was produced.
1. The interest of the purse. This interest they have given themselves by the price which immediately, or through the medium of their official subordinates and professional connexions, they have established themselves in the habit of exacting, by allowance from, and in partnership with, the government, which on those same occasions has given itself the advantage of the sale and denial of justice.
2. The interest of the pillow. In the best shape—the oral shape—the judges have the long and laborious occupation of superintending, and occasionally assisting, the elicitation of the testimony of the witnesses: that testimony is frequently drawn into tedious length, by inaptitude in all its shapes on the part of the witnesses; to wit, moral, intellectual, judicial, and appropriate relevant talent.
In its worst shape—the affidavit shape—it is presented to them through a channel the most agreeable to them of any in which it is possible to be presented: their old friends and associates impregnated with the same sinister interest and the same stock of ideas, acting in a sphere which is subordinate to their own, and by which their style of address is kept constantly in a strain of reverential homage.
[* ]By a recent statute (6 & 7 W IV. c. 114) a prisoner is entitled to have a copy of the evidence so taken before the justice; and to have it read at the trial. The judge always has this evidence before him; although, except in a very few cases, it can only be used by him as a guide in the examination of the witnesses.—Ed.