Front Page Titles (by Subject) EQUITY DISPATCH COURT PROPOSAL; CONTAINING A PLAN FOR THE SPEEDY AND UNEXPENSIVE TERMINATION OF THE SUITS NOW DEPENDING IN EQUITY COURTS. WITH THE FORM OF A PETITION, AND SOME ACCOUNT OF A PROPOSED BILL FOR THAT PURPOSE - The Works of Jeremy Bentham, vol. 3
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EQUITY DISPATCH COURT PROPOSAL; CONTAINING A PLAN FOR THE SPEEDY AND UNEXPENSIVE TERMINATION OF THE SUITS NOW DEPENDING IN EQUITY COURTS. WITH THE FORM OF A PETITION, AND SOME ACCOUNT OF A PROPOSED BILL FOR THAT PURPOSE - Jeremy Bentham, The Works of Jeremy Bentham, vol. 3 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 3.
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EQUITY DISPATCH COURT PROPOSAL;
(originally published in 1830.)
Question. By whom is it necessary, or may be of use, that cognizance should be taken of the proposed Law Reform system in general; and these pages in particular?
Answer. By the persons here following:—
1. Equity suitors, desirous of the relief promised by it.
2. Persons at large, desirous of seeing law reform at large.
3. In particular, persons at large, desirous of seeing established the system of local judicatories, with a view to which the institution of the Dispatch Court, with the system of procedure for the application of it, is proposed as a measure of experiment.
4. More particularly still, members of Parliament, desirous of seeing produced these same results, or any of them.
Fellow Countrymen and Fellow Countrywomen,
1. To convince you of your affliction, words would be thrown away: feelings afford but too sufficient proof. That which you have need of, is relief, and to put you in the way—the only way—of obtaining it, is the object and business of this Address.
2. You the honest—you the afflicted—to you alone is it made:—from you alone can that information and co-operation which are necessary, be looked for. By honest I mean, of course, those who are such in relation to the suits in which they are respectively embarked. To define the two classes, and at the same time to draw the line between them—a line, and that a clear one—a few words may suffice. Honest, and afflicted, those who, to the plan which you will see presently, give their consent: dishonest, and afflicters, those who refuse it. For, by the plan (as you will see,) minutes of continuance are substituted to many years: shillings of expense to hundreds or thousands of pounds: probability of right decision, not lessened but increased by the same system of simplicity by which existence is given to the saving in delay and expense.
3. Instrument of relief, what—course to be taken by you for the obtaining it, what:—these are the heads of the matter, which I have to submit to your consideration; accompanied by the offer, which you will see, of my gratuitous services such as they are, towards the accomplishment of this great purpose.
4. First, As to the instrument of relief. For presenting it to your view—a general idea of it—here too a few words may suffice.
5. Mode of procedure, the summary—substituted to the self-styled regular: with a judicatory, of a species correspondently simple substituted to that complicated, diversified, entangled, extortious and purposely dilatory system of judicature by which your affliction is produced.
6. Regular procedure, otherwise called technical: technical, from the Greek, meaning artificial: originally in a good sense, but in this case, from the employment given to it now in a bad sense; the distinctive character of it being the employment it gives to artifice, in substituting expensiveness to frugality, delay to dispatch, misdecision, or non-decision where decision is due, to right decision—all for the sake of the profit extractible from the extra-expense.
7. Judicatories in which the regular is in use, for example, the Westminster-Hall Courts: and, in particular, those which are the scenes of your torment, the so miscalled Equity Courts, as likewise the no less miscalled courts Christian, alias Spiritual Courts, alias Ecclesiastical Courts.
8. Judicatories in which summary procedure is in use—the small-debt judicatories called Courts of Requests and Courts of Conscience,—those held by Justices of the Peace when acting singly, or otherwise than in General Sessions,—those held by Bankruptcy Commissioners: add to these, Courts Martial, and Committees of either House of Parliament, when employed in the elicitation of evidence.
9. Secondly, As to the course to be taken by you, for the obtainment of this same instrument of relief. For this purpose I must begin with bringing to your view the authorities the co-operation of which will be necessary:—These are—1. Parliament; 2. King, acting separately; 3. House of Commons acting separately. Parliament, by the requisite enactments; King, by his Commissions given to Judge—say the Dispatch Court Judge, and his subordinates; House of Commons—eventually, by the elicitation, as you will see, of some eventually necessary evidence—over and above all which there can be any adequate assurance of your being able to give respectively, for the purpose of enabling the judge to determine, in relation to each one of your several suits, whether it be so circumstanced as that his authority is capable of being employed in it to advantage.
10.—I. First, As to the enactments and the Bill containing them. In the texture of a draught for that purpose, which will presently be brought to your view, you will see, besides the enactments, examples where they presented themselves as necessary or useful for the explanation of them; reasons, for the explanation as well as justification of them; and instructions to the Judge, where, in each individual case,—to enable him to do justice, by the adaptation of his decrees to each individual case,—the liberty allowed by such instructions may be necessary, instead of the obligation imposed by a set of general and indiscriminating enactments, applying alike to mutually different cases, such as require mutually different orders and decrees: for which cases accordingly one and the same enactment could not so well serve. A draught of this texture is one of the subject-matters of the offer which you will see.
II. Next, as to the distinct co-operation necessary on the part of the King. For the obtainment of it, as also for the obtainment of his concurrence in the act of Parliament, a petition from such of you as are repectively desirous of this relief, will, as you will see, be necessary. A draught composed of the proposed tenor of such petition, is another matter of the offer which you will see.
III. Now then, to enable the King and his advisers to judge, whether the change will be beneficial upon the whole, as well as whether you are respectively desirous of it; as also to enable the judge, in relation to the suits in which you are respectively engaged, to satisfy himself before-hand, whether it will be for your advantage that he should take cognizance of it,—information under various heads, from yourselves, and (for the reasons that you will see presently, generally speaking, not from your lawyers,) will be necessary. But, for this last-mentioned purpose, all the information you will be able to give, as to the state of the suit, will not, in the instance of every suit, be sufficient: and, where it is not, to give completeness to it, the authority of the House of Commons, applied to the solicitors in the several suits, and employed in the elicitation of the particulars of them, may, for the information of the judge, be necessary. Of the heads of such information you will presently see a list. The receipt of as much as can be received by me of this body of information, and the making use of it for the purpose of the Bill, is another of the subject-matters of the offer which you will see.
Now, as to some further details respecting the proposed instrument of your deliverance, and the course to be taken by you for the obtainment of it, and the putting it to use. The plan I have formed for this, is as follows:—
1. That, if necessary, to calm the apprehension of those on whom it depends, the duration of the change so to be effected be but temporary: say, for example, for three years, unless at or before the expiration of that time, made perpetual or continued.
2. That instead of being chosen by the recommendation of some person or other, whose emoluments and power, might, by the administration of such relief, be more or less reduced,—the judge be chosen by you—the persons for whom it is intended.
3. That the mode, employed for the manifestation of this choice, be—the ordinary mode in use in elections:—by ballot, to exclude danger of offence.
4. That the title to vote be constituted by a written instrument, presented to the returning officer: that instrument being the duplicate of a petition to the King, which had been delivered in at the proper office, praying his Majesty’s concurrence, as above, in relation to the several suits, in the event of the passing of the act: that is to say, by his commission given to the judge so elected: that petition being signed by parties, one or more, who are desirous of seeing such transference made: so signed, and thereupon exhibited by a party signing, or by some person employed by a party signing, as agent for that purpose.
5. That the petitions, so presented and exhibited, be composed all of them, of a printed paper, of the same tenor, each of them containing in manuscript a description of the circumstances of the individual person, and the individual suit in question, under the hereinafter-mentioned heads.
6. That for the purpose of enabling the judge to determine within himself, in relation to each suit, whether the advantage of the parties,—or of such of them, at the least, whose object is the attainment of the ends of justice, would upon the whole be promoted by the transference of the suit to his cognizance, as well as to perform, as per No. 7, the examination of the solicitors,—you do, each of you, annex to such his petition, information in relation to the suit, under those same heads, in so far as he is able.
7. That for the purpose of completing, as far as may be, relative to each suit, the body of information, under these same heads, for the use of the judge,—a committee, at the motion (for example) of the mover of the Bill, be appointed, with power to examine, as per No. 8, the solicitor or solicitors, one or more, in each of the several suits then in pendency; and in particular, in the suits here in question: as likewise, in relation to any suit in which no party has preferred any such petition, to ascertain what the cause is, why no such petition has been presented.
8. That, in relation to each suit, of which he sees reason to take cognizance, the judge do proceed by calling before him, at the outset, the solicitor or solicitors, for the purpose of learning the state in which the suit is; and the documents, the inspection and possession of which is necessary to the giving due determination to it.
9. That, forasmuch as by every suit thus taken out of their hands, the interest of all the several lawyers, official as well as professional,—professional at least, inasmuch as no indemnity can be awarded to them,—cannot but suffer detriment, on which account opposition to the transference, and resentment towards the suitors, known or suspected to be sharers in the endeavour to obtain it, will, on the part of the generality of them, if they be as other men are, be a natural, not to say necessary consequence; which resentment their relative situation will afford them the means but too ample for carrying into effect, to the injury of the suitors, in all degrees up to that of utter ruin,—all requisite measures be taken, for keeping from all such and other adversaries, in relation to each such petition, all knowledge, and even suspicion, of the fact, that, on the occasion of that same suit, measures have, by the suitors, or any of them, been taken, for the obtainment of the relief contemplated.
10. That, of the saving of loss so severe to you the many, loss to any amount, to that portion of the comparatively few in question, should be an inseparable consequence, is a matter of undeniably just regret: but, such is the condition of human affairs: nor, from this consideration, can any defensible reason for omitting to administer the relief, be deduced.
11. True it is, that, if the obtainment of the relief were a certain consequence of the application for it, no such secrecy would be needful: but, too true it is, no such certainty has place.
12. “Not a man will give his name to such a petition.” This is what was said to me. Said to me, and by whom? By a man, who, to a sincere desire to see the measure take effect, adds as complete an acquaintance with all the circumstances requisite to the formation of a correct opinion on this subject, as the soundest judgment, applied to adequate opportunites, can give. But this was immediately upon the first mention of the proposed petition, and before the provision made for the requisite concealment had been mentioned to him: which mentioned, he joined with me in being satisfied with its adequacy: and the Bill, in the state it was in, had received not only the most cordial good wishes, but the most unreserved approbation.
13. If it were necessary, that the delivery of the petitions at the office should be performed before the passing of the act, your desire to be rescued from the gripe of your tormentors might be known to them, before you had such an assurance as you would be capable of receiving as to the being rescued from it. But, in such delivery there would be no use, unless and until the act were passed; in which case, as you have seen, it would be necessary to the purpose of the election of the judge. In that event, and at that time, true it is, that it could not but be liable to be known to them. And, even in that event, to no one of you could it be matter of perfect certainty, that his case would be of the number of those, of which it would, in the eyes of the judge, be of advantage to justice that he should take cognizance. But, of these same precautions, you will hereafter see such a description, that no such apprehension will have place in more than a small proportion of your whole number: and, by declining to take part in the election, they will have it in their power to exempt themselves from it. Of that case a sufficient description will be seen in the hereinafter account given of the Bill.
14. In the event of the passing of the Act, in such strength will the protecting power of the eye of public opinion be bent upon the whole scene, that, by the most timid-minded suitor, scarcely could any apprehension be felt, capable of deterring him from taking his chance for so unexpected and consolatory a benefit.
15. A state of things that will probably he not unfrequently exemplified, is this:—Though all parties concur in interest and probable wishes, yet no more than one may have seen this address, or be so situated, as to be capable of being made to see it, with the degree of speed desirable and desired: for the concurrence of no person so circumstanced, it should seem, need any petition wait.
16. A state of things, calling indubitably for this result, and frequently exemplified, is this:—Persons there are, one or more, whose names must, in compliance with legal forms, have had place, in some of the proceedings of the suit,—but, in whose case, they having no interest in the event of it, the concern they have with it will not be known, to a party whose desire it is to see applied to it the here proposed change.
17. If, and when, such Dispatch Court shall have been established,—the Judge, instead of the King, will be the person to whom the petition for the cognizance to be taken by him, will be to be presented, by all persons desirous of seeing their suits thus transferred.
1. Now for the offer I have to make to you. Drawing the petition, drawing the bill, finding a member adequate to the task of moving for it, securing for it able supporters in the House—all this is done already.
2. Remains for the secrecy the security which I promise you, and the description of which will presently here follow. The offer, you will, each of you, consider as addressed to himself.
3. By a letter, addressed to me, inserting on the cover the words “On the Dispatch Court,” apply at the Westminster Review Office, No. 2, Wellington Street, for a copy of the petition which immediately follows. Whatsoever be the number of the parties, one and the same copy will suffice for all of them. Of the price, the regulations of the Stamp Office are said to inhibit the mention in this place.
4. This copy, or some other, each party, or set of parties, will return to the private office or shop, with the signature or signatures, of the party or parties, intending to present the petition to the Government Office:—this copy with the answers made to the queries or say heads, which you will see inserted in § 4 of this, for the purpose of eliciting the information hereinbefore spoken of as requisite.
5. Should the Bill pass,—in that case, and in that case only, you will apply again to the above-mentioned private office, and obtain another copy for the purpose of its being delivered at the Government Office, with the manuscript part, as above, transcribed from the first copy, in such manner as to render the second an exact duplicate of it.
6. A third copy, letter-press and manuscript together, will be requisite, for the purpose of serving at the above-mentioned election of the judge, as proof, to the returning officer, of your right to vote.
7. If and when the number of the suits so petitioned for, is, in the opinion of the proposed Mover of the Bill, sufficient to produce the requisite share of attention in the House,—in that case, and in that case alone, will the motion be made.
8. For this purpose, an account of the filled-up petitions received, will be kept at the private office as above; and, each day, will be put up and kept hanging, in a place in which it will be conspicuous to passengers. It will be composed of a paper, printed in placard letters, with manuscript characters, exhibiting the number of such copies received on the foregoing day, and the total number received up to that day. On that same paper, should any occurrence have taken place, of which it might be of use that you should be informed, indication will be made of it.
9. When your determination to take part in the business is taken, the sooner you give effect to it the better. For, the greater the number of you, the greater will be the probability that your wishes will be accomplished: and, the greater the number known to have concurred, the greater the encouragement afforded to all persons who are in the same sad case.
10. Moreover, in the bill will be found a clause, that among those who belong to the same class, in respect to degree of aptitude of their cases for the reception of the relief, the case of each person’s suit shall come on for hearing, antecedently to the cases of all suits, the petitions for which were not received till a day posterior to that on which his was received: and that, in the case in which several petitions have been received on one and the same day, the order of preaudience shall be determined by lot.
11. To each one of the unhappy suitors, who, on the ground of a pretended contempt, are immured by Equity in the Fleet prison, all these copies will be delivered gratis.
12. On the same terms, copies would be delivered to every proposed petitioner, who would give me adequate assurance that his circumstances would not afford the expense,—were it not that I have been assured, by a competently-informed and judicious friend, that in that case, demands would rain in upon me in intolerable number; that is to say—partly from dishonest persons, thus seeking to obtain copies, for the purpose of selling them; partly from dishonest suitors, for the purpose of exhausting the stock, obstructing the plans, and punishing the originator for having originated it.
13. However, if any Member of Parliament, whose name will, of course, as such, afford an adequate security against abuse, will, for this purpose, apply himself to me, as above, mentioning the name of the suit, and the name of the suitor, for whom, and at whose desire he applies, the three copies shall be delivered to him on the same gratuitous terms.
14. When your petition is delivering in at the Government Office, request, of the person to whom it is delivered, proof of the fact of such delivery, by his attestation, written on the copy so delivered in, as likewise on the copy reserved by you for the purpose of the election, as above. Should the making of these entries, or either of them, be declined at the office—(an event, against which, how improbable soever, the requisite provision must not be omitted,) you will do well to enter on both copies, in the same words, a memorandum of such refusal: but, before the making of such memorandum, you will do well to apply at the office, with some trust-worthy person, in quality of witness, to give his attestation to such your unavailing endeavours.
15. As to what depends on myself towards the preservation of the above-mentioned secrecy,—it is not without regret that I consider and acknowledge, that the nature of the case affords not as far as I can see any better assurance than my name promises: if to you any additional security presents itself, state it to me, and the requisite attention shall be paid to it. My way is—if on any occasion, I see reason to regard myself as being an object of suspicion,—if I am even expressly told as much,—no offence do I take, much less do I, as some on an occasion of this sort do, betake myself to blustering (such being the natural and ordinary resource of a person, in whose instance a suspicion is well grounded,) but join cheerfully in contributing what depends on me towards the removal of the suspicion, and quieting the anxiety of which I am the cause. Not but that, were it my desire to do injury, it would be in my power so to do, to individuals in number more or less considerable, without frustrating my plan in regard to the rest. But, being thought to be what I am thought to be, my hope and belief is, that there are not many persons, in whose eyes the danger, such as it is, will be formidable enough to prevent their taking their chance for the relief.
16. To a member of Parliament, as being prepared to move for the Bill, allusion has been made already. A man, of the first rate for talents and influence, stands pledged to me for the rendering you that service. No session, no day, will be wasted; no moving resolutions, or a preparatory committee or committees, for the elicitation of evidence to form a ground for it. A motion for a committee will follow, whether the leave be granted or refused: for the resolutions, if it be refused. No exertion, no effort, which affords, were it ever so slight, a chance for your relief, will be shrunk from, so long as life remains in the hand that moves this pen.
17. Some account of this same bill forms the matter of the third section of these pages.
EQUITY SUITORS’ PETITION FOR DISPATCH COURT.
The Petition of the Undersigned Persons, all of them Suitors in one or other of your Majesty’s Equity Courts;
1. That, in common with the rest of your Majesty’s English subjects, but in a more especial degree, we feel ourselves sorely aggrieved by the delay, expense, and vexation, by which obstruction is opposed to applications for justice in the superior courts in general, and above all, in the courts called Equity Courts.
2. That this obstruction is the result, not of the natural state of things, nor yet of any misconduct, with which the functionaries of justice, in these our times, are especially chargeable, but of that mode of remuneration for judicial service, which the rude state of society in the early ages, perhaps, necessitated.
3. That this grievance, though at all times so constant in existence and operation, in judicial practice,—has at all times stood prohibited by an express law, and that, the law styled by pre-eminence Magna Charta,—the very law which stands first in the statute-book, and has at all times been regarded and spoken of as the corner-stone of that constitution, by which the government of your Majesty’s kingdom has, at all times, been so highly distinguished, to its advantage, from all other monarchies.
4. That by the said statute, it is declared in express words as follows: Nulli differemus, nulli vendemus, nulli negabimus justitiam—we will not delay, we will not sell, we will not deny, justice to any one.
5. That in direct contravention of an ordinance and promise thus clear and express,—justice in your Majesty’s Equity Courts, has, at all times, by artificial devices, been delayed to all, without exception; sold to the comparatively few, who have been able to pay the extortious price, at all times put upon it (to which unhappy number belong we, whose names are hereunto subscribed;) and utterly denied to all who have been unable to come up to that price; to which last class belong the vast majority of your Majesty’s English subjects, not to speak of others.
6. That, for some generations, in and by your Majesty’s courts of justice, two essentially different forms, modes, or courses, of judicial procedure have been carried on, and acted under: the one called the regular, the other the summary: the regular mode having been, almost the whole of it, the work of a set of judges, who, all the time, have acknowledged and declared themselves incompetent to make law; the summary, the work of the only legislature of these your Majesty’s realms—the King, Lords, and Commons, in Parliament assembled.
7. That this course of procedure—the only one which has its foundation in acknowledged law—not only in the nature of it, shuts an effectual door against all factitious delay, expense, and vexation, but is, in a superior degree, not to say exclusively, calculated to ensure rectitude of decision: and is, accordingly, not a mere makeshift, but the only course really adapted to the purpose of giving execution and effect to that main part of the body of the law to which it is intended to give execution and effect—in a word, to the attainment of the ends of justice.
8. That the giving to us, your Majesty’s subjects, in all cases, the benefit of this exclusively apt course of procedure, would necessitate the revival of that all-comprehensive system of local judicatories, which had place in the days of our Saxon ancestors, and which (though traces of it still remain,) became virtually extinguished, by means of the Norman conquest: and, though ultimately, if administered as it ought to be, and might be, and substituted to the present so inadequate system of judicatories, the aggregate expense would even be reduced by it,—yet, in the first instance, a very considerable expense would be an indispensable preliminary to it.
9. That, antecedently to the disbursement of that extra expense,—an institution, which if practicable, would of course be highly desirable, is—one, by which the effects of the substitution of the summary system of procedure, when substituted to the equity mode, which is the most oppressive of all the modes of the regular system, might be rendered matter of experience: which experience obtained, either the supposed improvement will be shown to be impracticable, or a sufficient warrant will be given, for the expense necessary to the making a general application of it.
10. That we have seen a work, published under the title of Justice and Codification Petitions,* by Jeremy Bentham; in which, by the name of The Dispatch Court, a description is given of a judicatory, by means of which an effectual trial might be made of the proposed summary system, with very inconsiderable expense, and without any arrangement produced in the case of any suit, other than the several individual suits, in which application will have been expressly made of it.
11. That, under the existing system, the interest of men of law being, for the most part, so unhappily, and, to no small extent, irreconcileably adverse to that of the rest of your Majesty’s subjects—the interest of men of law in general, but more especially of those among whom your Majesty would have to make choice of a judge for the proposed new court, and of those by whose advice and on whose recommendation such choice would, in ordinary course, have to be made,—we cannot, consistently with observation made of the universally-regulating principle of human action, entertain any the least hope of a successful issue to the proposed experiment, if the choice in this respect were made without some deviation from that same ordinary course.
12. That, a course, however, there is, by which—in a mode universally familiar and approved—a choice, satisfactory to us, and fully competent to the purpose, might be made without prejudice to your Majesty’s undisputed and indisputable royal prerogative—and without other sacrifice, than such of which precedents in abundance are already in existence.
13. That, accordingly, by the 9th and 10th of King William the Third, chapter the 15th, access to justice is provided, by means of judges, who, under the name of arbitrators, are chosen by the sole will of suitors, without any commission from, or cognizance of such choice taken by the sovereign of this realm: and, to the decrees of the occasional judges thus chosen, is the force of law accordingly given; though in a very inadequate manner, and to a very inadequate extent: owing to the adverse interest and irresistible power of the permanent judges of the superior courts.
14. That, in like manner, at divers times, and in divers places, originally under the name of Courts of Requests, and thereafter under the name of Courts of Conscience, courts officiating by the like summary course of procedure, have—each of them—by a statute made and enacted for the purpose, been established: and that, in the instance of none of them, in the choice or appointment of persons therein officiating as judges, has any part been given to be borne by your Majesty, or any of your Majesty’s royal predecessors.
15. That, confiding in your Majesty’s paternal goodness, and praying, as by these presents we humbly but earnestly do pray, that, in the appointment of a judge of the hereby-proposed Dispatch Court, the choice may, in the first instance, in this case, as in that of an Arbitration Court, as above, be made by suitors,—we desire not to exempt such choice from the controul of your Majesty’s paternal hand: on the contrary, it is our humble request, that, as often as made, any such choice shall be made subject to disallowance, by your Majesty’s royal negative.
16. That, accordingly, we further pray, that it may please your Majesty, to issue your Majesty’s royal proclamation,—declaring—that if, and so soon as it shall have pleased your Majesty in Parliament to institute a Court of the description above mentioned, with powers necessary and requisite for the giving execution and effect to the institution thereby established, your Majesty will be graciously pleased to appoint a place, at which we the undersigned and such other persons as may have successively added their respective signatures, may assemble, and then and there, in the way of ballot, make choice of a person to be appointed to that office; and, under and by virtue of your Majesty’s royal commission, to act under, and give execution and effect to, the powers thereof: subject, however, to your Majesty’s undisputed and indisputable royal negative, upon any person at any time so elected.
17. That, in the humble hope of such your Majesty’s gracious and compassionate compliances, we your Majesty’s afflicted subjects have hereunto subscribed our respective names, residences, and conditions in life in respect of marriage; prefixing in each instance the names of the suits in which we are suitors, as likewise the names of all the several other suitors, in such suit, and on which side thereof respectively, as far as known to us. Witness our hands—
DISPATCH COURT BILL—SOME ACCOUNT OF IT.
1. The Bill may be considered as divisible into two parts. In part the first, is contained the matter belonging to the necessary new Judicatory. In the other part, the matter belonging to the so well known, but to suits of the description in question, so newly applied, course of Procedure.
2. Of part the first, heads under which the matter will be distributed are the following:—*
3. Of part the second, the matter is distributed into sections, under the heads following:—
4. In the Bill itself,—as between Judicatory and Procedure, the formation of the instrument, by which the work was to be done, was the object which had the best claim (it was thought) to precedence. But, in the account here to be given of it for the information of the proposed petitioners, conception (it is thought) will be assisted by bringing to view the work itself—the system—for the application of which the official hands are to be employed—before bringing to view those same hands, with the powers given to them for the purpose of the employment.
Examination of Solicitors.
5 or 1. Purpose of this examination, obtaining as to the nature of the several suits, such insight, as will enable the judge to see which of them afford the best promise of being dispatched, within the length of time provisionally allotted for the duration of this experimental system, and with subordinates in no greater number than that to which frugality appears to prescribe the limitation of it.
Pre-audience by Lot.
6 or 1. Having, by the lights afforded by the information contained in the answers made to the queries, inserted in the several Petitions constitutive of the titles to the votes at the election by which he was seated—together with the result of the examination of the several solicitors—obtained such insight into the nature of the several suits, and the progress made in them, as may have enabled him to distribute them into classes with a view to pre-audience, what shall the judge do, in relation to this point, as between individual and individual in the same class? Answer: As to days, first come first served. All suitors, whose petitions were sent into the private office on a Monday, heard before all those whose petitions were not sent in till the Tuesday, and so on:—a premium this for promptitude. As to those which were sent in on the same day, let chance determine. Reason: Choice admits of undue partiality: chance does not.
Whenever choice presents no advantage, it is a rule with me, both in legislation and judicature, to employ chance, which possesses this advantage.
Initiatory Examination of Parties.
7 or 1. The suit, with the documents belonging to it, being taken out of the hands of the Judges of the Equity Courts by the Dispatch Court Judge, in consequence of the lights obtained by the examination of solicitors as above,—and notice being given to the parties, or such of them in the instance of whom such attendance is at once needful and practicable,—you will thereupon find yourselves in the presence of your adversary or adversaries,—or, in the case of an amicable suit, of the parties jointly interested with you:—all of you, at the same time, in the presence, and under the orders, of the judge.
8 or 2. Instead of the five years and upwards,—which, at the commencement of the suit, it would have been in the power of a dishonest defendant to cause to elapse, before an effectual answer had been given by him to the demand made upon him for his evidence,—you will now have the advantage, if you are on the plaintiff’s side, of receiving all the evidence at that same hearing extractible from him in support of your demand,—and either the evidence itself, or information of the evidence, which he looks to employ in his defence against such your demand: if the side you are on is the defendant’s side, your advantage will be—that of furnishing the judge thus early with reasons why he ought to put an end to the expense and vexation under which you are suffering.
9 or 3. Whatever answers a party examined on your behalf gives, you may follow up your first question by further questions arising out of such his answers: and so on toties quoties; and thus you will obtain a much greater probability of eliciting all the evidence which it would be of use to elicit from him, than you could obtain from him at a distance, in the way of epistolary correspondence, as in the Equity Court practice.
10 or 4. On this occasion,—according to the stage at which the suit is arrived, you will possess the means of putting an end to, or anticipating, any measures which, in consequence of the opposition of the interest of your solicitors and your several other agents,—might otherwise have been taken for giving further increase to the expense and delay of the suit, for the sake of the profit extractible by them out of the expense; and, in this endeavour, the judge,—his interest having (as you will see in the judiciary part of the Bill,) been made the same as yours,—will not only assist you, but, if and so far as needful, anticipate you.
11 or 5. And now, as to probability of rectitude of decision on the part of the Judge, over and above the saving in respect of expense and delay,—you see already what advantage this natural and familiar mode of procedure will give you,—in comparison with the unnatural, technical, and lengthy mode, devised and supported under the existing system, for the sake of the profit extractible out of the expense.
Appropriate Intercourse, constant and universal, secured.
12 or 1. In no more than a comparatively small number of instances will it be possible to give termination to the suit at this first hearing. In the other instances, further hearings, one or more, will be necessary. By the Dispatch Court Bill, every person, whether party or witness, who comes upon the stage, is, before his departure, laid under the obligation of giving information of some mode of addressing letters to him, which, in the course of the LETTER post, may be sure to reach him at a foreknown time, so long as the suit lasts; changing the information upon any and every change of residence. Thus is put the extinguisher upon all chicaneries about notice. Prodigious is the mass of expense, delay, and injustice, against which the door is shut by this arrangement. See, in the Petition for Justice,—title, Blind fixation of times for Judicial Operations. (Vol. V. p. 470.)
Mutual Security for Appropriate Forthcomingness of Things and Persons secured.
13 or 1. Namely,—of things, whether in the characters of articles of value, and as such subjects of the contestation, or in that of sources of evidence: of persons, whether in the character of persons under guardianship,—as in the case of wives, children, and prisoners, for the benefit of those same persons,—or in the character of sources of evidence; or, as in the case of defendants, for the purpose of their being compelled to contribute, by disclosure, to the forthcomingness of things or persons for either of the just mentioned purposes.
14 or 2. For actual forthcomingness provision is made in Part I. Judiciary, under the head of Prehensors and Deputes [Messengers.]
15 or 3. Security for forthcomingness, whether of things or persons, for the purpose of eventual compensation or punishment in case of wrong—this security, if given to both sides, is serviceable to both sides, and conducive to justice: it is accordingly, under the proposed system, given to both sides. Of all possible modes of affording this security,—power is given to the Judge to employ, in each case, that or those by which, to all parties taken together, the least quantity of inconvenience will be produced.
16 or 4. Harshness and inefficiency—these opposite defects, with the addition of complexity, dilatoriness, and expensiveness, all in the extremes—such are the vices by which the practice of the Equity Courts has been shown to be polluted (see Petition for Justice,)—and from which the proposed practice of the Dispatch Court may be seen to be pure.
Subsequential Evidence Elicitation.
17 or 1. The evidence, with the elicitation of which the suit commences, is elicited in the justice-chamber, by word of mouth, as above. Of ulterior evidence,—the source, whether it be a person or a thing, may be at any distance. Upon the distance it may depend—whether it will be for your advantage that the Dispatch Court judge should take cognizance of your suit. Where the evidence is at a distance, it will depend upon circumstances—whether to employ the word of mouth mode, or, to save the delay and expense of travelling, the mode by letters, or say the epistolary mode.
18 or 2. By the Dispatch Court, either the word of mouth mode, or the epistolary mode, will be employed, instead of the secret mode, which, under the existing equity system, now in use, is employed upon all persons but defendants:—and even upon them in some cases: that is to say, after they have been examined by the bill in the epistolary mode. In this same secret mode, the examination is performed by interrogatories, as the phrase is, by a clerk instead of the judge.
19 or 3. For the flagrant inaptitude of the examination by interrogatories, as it is called (as if it were not by interrogatories that all examination is performed) see the Rationale of Evidence.
§ vii. & viii.
Equity Costs and Dispatch Court Costs.
20 or 1. Trifling in comparison will have been the Dispatch Court Costs: grievous to the amount which you all feel those of the Equity Courts, under whose gripe you are suffering. Imperfect would be the provision made for doing you justice, if such provision as the circumstances of your adversaries admitted of were not made, for reimbursement of the whole loss to which by self-conscious injustice you have been subjected: for substituting humiliation to the triumph over you, which had been promised to itself, by premeditated injustice. By the Dispatch Court, such provision will be made accordingly, as to all such costs as it finds disbursed or incurred in the Equity Court.
21 or 2. As to the Dispatch Court Costs, the aggregate of them will, on this occasion, require to be distinguished into two branches. The first will be composed of all those, the burthen of which will be prevented from pressing on the shoulders of suitors—those children of affliction, on whom, after all possible alleviation made, the pressure will remain so deplorably heavy—by being laid upon the people at large, who, without being loaded with this burthen, enjoy all the benefits which law affords;—the other branch will be composed of those which are not susceptible of so desirable a distinction.
22 or 3. To the first branch belong those which are necessitated by the remuneration and equipment of the public functionaries: as to which, see in the part which relates to the judiciary, the seven first sections, and in particular, section 7, Prehensor and Deputes [Messengers;] and section 8, Consignees.
23 or 4. To the other branch belong those costs which are necessitated by the elicitation of evidence. For this purpose, the whole mass of evidence, which, on this occasion, can require to be elicited, may be distinguished into that part, the source of which is situated within the local field of the jurisdiction given to the Dispatch Court:—namely, the metropolis, and its vicinity,—and that part which is not thus fortunately situated.
24 or 5. In regard to this home part, as it may be called, the expense of elicitation will not be considerable enough to be on this occasion worth bringing to view: the oral being the mode in which of course, the elicitation will be performed.
25 or 6. Remains, that which may be called the foreign part. As to this, the holder of it—is he, is he not, to the purpose of securing the forthcomingness, the verity, and the sufficiency of it,—in any effectual way within the power of the Dispatch Court? within its power—that is to say, by the prehensibility of his person or his property: including not only things corporeal, moveable or immoveable, but things incorporeal, or as they are termed, rights.
26 or 7. If the evidence-holder is thus desirably situated, then will come to be considered whether the elicitation of it is capable of being performed with advantage to justice upon the whole: including probability of right information, and thence of right decision on the one hand, and saving of expense and delay on the other hand; if yes, it will be so performed accordingly; if not, there remains only the oral mode; in which way the elicitation can no otherwise be performed than by some person or persons, invested with judicial authority for this purpose. Such persons are under the existing system, styled Commissioners: their commission, a commission for examining witnesses abroad.
27 or 8. A recent case has just been stated to me—an Equity case—the particulars of which I could have to produce—in which the expense of this commission had amounted to about £9000. Let any one imagine—supposing the Judge to have sufficient hold upon the individual as above—to how trifling an amount, comparatively speaking, the expense in this case might have been reduced by substitution of the epistolary mode:—the mode of which, that by bill and answer in Equity Court practice, might afford an example, supposing it not poisoned by the irrelevant, mendacious, and other worse than useless matter, with the factitious delay, by that and other instruments manufactured.
28 or 9. But, in this case, by whom (asks an Equity lawyer) shall the oath be administered?—I answer—by nobody. For the uselessness and mischievousness of that ceremony see the Petitions for Justice (Vol. V. p. 454.) By the preliminary examination of the Solicitor, as per section i., will these particulars have been elicited: and from them will the judge determine whether it will or will not, upon the whole, be for the advantage of the parties, that he should take cognizance of the suit. As to the points on which this examination will be performed, see the concluding section of this Proposal.
Execution how performed.
29 or 1. Of those powers, in relation to things and persons, the exercise given to which is, antecedently to the termination of the suit, provisional, and but temporary,—the exercise given at the termination of the suit, for the purpose of executing the judge’s ultimate decrees in relation to it, will be made definitive.
Compare with this simplicity—you who are able—the infinite diversification—needlessly, uselessly, and so much worse than uselessly—employed, under the existing Equity system.
Eventual Retrotransference of Suits not terminable within time.
30 or 1. The Dispatch Court being but a measure of experiment,—the duration of the powers of the Judge and the other functionaries, must accordingly be limited. But, sad would be your case, if, after having been taken out of the hands of the Equity Court Judges, and being proceeded upon by the Dispatch Court judge,—the suits were sent back to those same tardy and rapacious hands:—a calamity, to which it might be doomed, for example, by nonforthcomingness, on the part of any necessary piece of evidence. Provision against this contingency is accordingly made.—See as to this matter, Part I. Judicatory, section 11, Auxiliary Judges, if needed—[Auxiliary Judges and Accountants.]
Expense of the Court how provided for.
31 or 1. This being no concern of yours you need not, and accordingly will not, hers be troubled with it.
32. Now as to the constitution and powers of the judicatory, by which the application will be made of the procedure, the option of which is thus proposed to you.
Judge located, how.
33 or 1. Processes requisite, as you have seen already, two: 1. Election performed:—performed by the majority of you the petitioning Equity Suitors: 2. Allowance by the King. Precedents for the location of functionaries acting as Judges—for their location without the concurrence of his Majesty—have place in abundance:—Witness, i. Arbitrators; ii. Courts of Conscience;* iii. Recorder of the City of London, and his occasional substitute the Common Serjeant, besides the recorders and mayors of various cities and towns.
34 or 2. But, in the delusive language of the existing system, the throne is styled the fountain of justice: and of the power proposed to be given to the judge of the proposed new court, the importance will, in the eyes of the opulent, the ruling and the influential few, be so much greater than that of any one of the above-mentioned judicatories, or even of all of them put together—that, lest the prerogative should be regarded as trenched upon, and the constitution as being thus impaired and endangered, this security is added.
35 or 3. Persons by whom the choice of the judge is proposed to be made, those whose interest it is that the experiment should succeed: persons by whom it is not proposed to be made, those whose interest it is that it should prove abortive.
36 or 4. Mode of voting ballot: that, by the secrecy—to the declaration expressed by the vote, freedom and truth may be preserved: and relative weakness preserved from oppression by the hand of power: oppression—by punishment inflicted in secret, for the exercise of right professed to be created and conferred.
37 or 1. There are two modes of remuneration, by each of which, interest is placed in opposition to duty: consequence, duty regularly violated, and all the sufferings, resulting from the violations of the duty produced.
38 or 2. One is—where the quantity of the remuneration keeps pace with the number of the operations performed, or charged for as if performed, and the number or length of the written instruments manufactured, or charged for as if manufactured: say, where payment is made by the job, or, in one word, job-work. Such is the form in which, according to the general rule, under the existing system, remuneration is allowed to be exacted by lawyers, official and professional; by professional lawyers, by whom, in the nature of the case, it cannot be received in any other mode: by official lawyers, by whom it not only is capable of being, but actually is in addition, received in the mode of salary, of which presently.
39 or 3. The other mode in which interest is placed in opposition to duty, is—that in which the quantity of the remuneration keeps pace with the length of time, occupied, or presumed to be occupied in the performance of the duty: it being at the same time in the power of the functionary to give increase to this same length.
40 or 4. Instances in which, in the case of official lawyers, it has place, are afforded by the functionaries following:—i. Masters in Chancery, number of them 10; ii. Masters, by a recent institution, located in the Equity side of the Exchequer Court, 2; iii. Bankruptcy Commissioners; number of them 70:—permanent Judges, all the above; iv. Commissioners, for elicitation of evidence, under Equity Court procedure in country causes; v. Barristers, employed as arbitrators at sittings and assizes, in virtue of the necessity created by the flagrant impracticability of jury trial, in so large a proportion of the cases in which employment is given to it, &c. &c.: not to speak of cases, in which, the business being in its nature but temporary—it cannot, under the existing system, be practicable to employ any other than this same temporary mode: such, for example, as that of the Commissioners for the settlement of the Nabob of Arcot’s debts; and that of various sets of Commissioners for inquiring into the state of practice in various departments, for the purpose, real or pretended, of legislative reform or improvement.
41 or 5. On the other hand, two modes there are, in which alone remuneration is capable of being applied, in such sort as not to place in a state of opposition to duty.
42 or 6. One is—that, in which the whole of the functionary’s applicable time being engaged for, is actually applied to the performance of the duty, such vacation time excepted as is allowed for private business and recreation. This is the mode exemplified, in so far as the form of salary is the form given to it with fixation, or limitation on the diminution side, of the number of the days in the year, and of the hours in the day, required to be occupied in the actual performance of the duty, or in readiness to make such performance in the event of its being called for.
43 or 7. The other is—where the duty consists in the making distribution of a mass of property among a number of co-litigants, or other co-applicants, with or without the previous formation of that same mass, by collection of the matter of which it is composed,—and the payment is allotted in the shape of a percentage upon the sums received by each demandant; adequate provision being at the same time made, against precipitation for the purpose of giving acceleration to the time of the receipt of such remuneration, by dispatch given to the business for which it is bestowed.
44 or 8. This accordingly is the form herein proposed to be given to it, in the cases in which the duty is that appointed to be performed by an Auxiliary Judge, located for the purpose, whether for a time certain or for the particular occasion, by the principal Dispatch Court Judge, in a case of the just-mentioned description. Examples are—1. Distribution of the matter of a mass of government annuities, or of shares in joint stock annuities; 2. Distribution of the matter of a mass of property, which is first to be formed by previous collection, for instance of a person deceased, among his creditors, genealogical representatives, and legatees; or of the property of a bankrupt, or other insolvent.
45 or 1. Of the sort of functionary thus denominated, the function—the duty—consists in the making and keeping of the permanent signs of all sorts, the principal of which are written instruments; with accounts of every material operation, performed by functionaries and suitors, upon or in relation to others, in that branch to which he belongs, of the department to which he belongs.
46 or 2. Under the existing system,—of the produce of the most material operation performed, namely, the elicitation of the evidence in the Common-Law Courts, no such account, generally speaking, is kept. In the Equity Courts, generally speaking, the product of the operation is preserved: witness Bills and Answers, and Depositions elicited by interrogatories.
47 or 3. Under the existing system,—no authentic account is kept, or taken, of what is said by Judges: for, Judges are the hands by which the practice has been created: and, so long as man is man, to men in power it will be an object—not to maximize but to minimize their responsibility, in respect of the exercise given to their trust.
48 or 4. Under the here-proposed system, registration having among its objects the opposite result,—to the duty of this functionary the correspondent extent is accordingly allotted.
49 or 5. For a mode of producing, for so many various destinations, eight or more copies by the same hand, at one and the same time—a most ingenious and effective mode, styled the manifold mode—see the “Petition for Justice,” [and see Vol. V. p. 406.]
50 or 1. Some of you, my friends—alas! but too many of you—the here-proposed transfer will find in a state of indigence; of indigence absolute, or at least relative; some having by the Equity suit been found in that state, others put into it.
51 or 2. Under the existing system, the Judges, when they have found you in, or put you into, this unhappy state, punish you for the crime of having been so dealt with by them. Upon your failing to pay those fees which they require, and of which the payment is impossible to you, they inform you that you hold them in contempt: this is the justification they make for thus dealing by you.
Thus it is,—that, with the utmost regularity, under this regular system, the impoverished and the afflicted are among the chosen subjects, of the depredation and oppression which they exercise.
Accordingly, when a debtor has been incarcerated by them, for not being able to pay further fees to them, in addition to the debt, and to the former fees, by the exaction of which they have prevented him from so doing,—he is kept in jail by them for not having wherewithal to pay to the jailor a fee for being let out: a fee, from which a judge, by whom, for this purpose, the jailor was placed in such his situation, reaps accordingly the proportionate benefit. And, to procure this benefit to the judge, the public is eventually loaded with the further expense of keeping the victim for an indefinite multitude of ulterior years.
52 or 3. Of this statement, that which under the proposed system you will experience, is, as far as it can be made, the opposite. For assistance, in so far as needed by you, in support of your demand or defence, as the case may be,—it provides this functionary, whose remuneration is provided for at the expense of the whole community of which you are the afflicted members.
53. Thus much as to the costs of the Judiciary establishment. As to those of the course of Procedure, you have seen what is said in Part II., ix. Dispatch Court Costs, &c. [Part II. sect. 22.]
Deputes; namely of Judge, Registrar, and Eleemosynary Advocate.
54 or 1. Under the existing system, scarce any Judge has his occasional substitute.
55 or 2. Under the here-proposed system, the provision made is, as it were, elastic: according to the occasion, it stretches itself and contracts itself: it fits every state of things: like the fabled boots, which fitted themselves to every leg.
56 or 3. From Scottish practice, name and function of Depute are both borrowed: but the application made of the names is different. In Scottish practice, as the Sheriff never acts, the so styled Depute is in fact the Principal. By him are appointed Substitutes, one or more, who answer to the here-proposed Deputes.
57 or 4. In English practice—namely, in the administration department—a paid principal with an unpaid substitute, is not without an example.
By 56 Geo. III. c. 98, § 5, it is declared to be lawful for the Vice-Treasurer of Ireland “to appoint any person to be his deputy, to act during his absence or incapacity from sickness:” and that “all acts done by such deputy shall be as good and valid, to all intents and purposes, as if they were done by such vice-treasurer in his own proper person:” and moreover, “that such Vice-Treasurer shall be answerable and responsible for all acts done by such deputy in the execution of the duty of his office.”
58 or 5. In the here-proposed judicatory, to the depute no actual emolument will accordingly be given; for, if it were, the judge principal, if he were a man, would, for the benefit of the patronage, add depute to depute without stint; as, in bankruptcy judicature, commissioner has been added to commissioner.
59 or 6. Nor yet will the measure of labour, and the number of labourers needful, be otherwise than full. For, by the prospect of the pecuniary part of the remuneration will be formed the eventual part of his inducement for acceptance; and, by the power and dignity inseparable from his office, the actual and constantly concomitant part of it:—all, without addition in any shape to the public burthen.
60 or 7. At the same time, like the Thames in the poet’s picture of it, it is without overflowing that it will be thus full. For, as the number increases, the probability of succeeding to the pecuniary part of it will, in all eyes, decrease; and thus, in each one’s eyes, the prospect of succeeding will, in that same proportion, decrease in value: the consequence is—that if deputes, more in number than work can be found for, are called for by the principal, the call will cease to find labourers to answer to it.
61 or 8. Nor is the provision thus made much less effectual for appropriate aptitude than for cheapness and sufficiency. For, of that qualification—as in every other service so in this—a strongly operative cause, and thence presumptive proof, is relish; and, of relish, length of continuance in practice.
62 or 9. For completing the security against deficiency without detriment to economy, one arrangement remains. If work, more than there are workmen for, remains undone, because deputes are in number so great as to stop the value of the office in the eyes of all duly qualified candidates,—then will be the time for an appointment, to be made by competent authority, of an additional principal. Thus—as in a watch the appropriate quantity of velocity—the appropriate quantity of judge-power is provided for, and regulated by antagonizing springs.
63 or 10. And so, in the case of the other functionaries—the Registrar, and the Eleemosynary Advocate; and the Prehensor, of whom in § vii.
64 or 1. Under the existing system may be seen—on the one hand, inadequate power; on the other hand, inadequate checks. In the here proposed system—on the one hand, adequate powers, with necessary exemptions; on the other hand, adequate checks: both in hitherto unexampled force.
65 or 2. By the powerful and influential among the existing fraternity of lawyers, with few and casual exceptions, both will of course be cried out against:—the strength and efficiency of the powers,—because, while, by the opposite deficiency, the power to do good to the public is lessened, the power to do good to themselves at the expense of the public is not lessened: the checks,—because to the so complete irresistibility, impunity, and irresponsibility, at present enjoyed by judges, liability to punishment in case of delinquency is here substituted: and thus an example, in their eyes evil, will be set, and held forth to public view.
66 or 3. As to those same powers and exemptions on the one hand, those same checks on the other—with the enumeration and delineation of them in detail I will not attempt to trouble you: in the bill they will come before you. In the meantime, you will probably, without much difficulty, give me credit for the adequate observation and enumeration of them.
67 or 4. One however there is—the importance and efficiency of which on the one hand, with the novelty and formidableness on the other, concur in calling for some mention of it thus early, for the purpose of obviating the objections which in any mind may be so apt to oppose themselves to it. This is the self-extensive power. Boundless, and accordingly dangerous in the extreme, as, if taken by itself, it would by this its very denomination be even acknowledged to be,—it will, on further view, be seen to be, by appropriate checks, bereft of all its natural dangerousness: the teeth of the viper drawn out, nothing but the salubrious flesh left remaining. Power of disallowance—instantaneous disallowance, at any time, is not only reserved to Parliament, but given to King, Lords, and Commons,—exercisable by each one of the three authorities, without need of concurrence on the part of any other.
68 or 5. Far indeed from faint was (you see) the call for this arrangement. Applied to the purpose of frustrating the proposed institution,—on the parts of the existing functionaries, always supposing them to be human beings, all that can be done by human ingenuity, strengthened by long practice, was of course to be looked for and provided against.
69 or 6. For the obtainment of power to sell the liberty of every man to every man who would pay for it the price set upon it by himself—the vender,—Hale—Lord Chief Justice Hale—President of the Gods of Lawyers’ Idolatry—and really the very best of them—scrupled not to wage war with his brethren of the other bench, with wilful lies for weapons. Object of depredation, no more than a scrap of jurisdiction, employed in making arrest for debt. From any other man, in any correspondent situation, what is not the resistance to be provided against, when, as in this, so vast and undefined a proportion of the emolument is at stake?
Prehensor and Deputes.
70 or 1. In the proposed Bill is shown the need there is of three different sorts of functionaries—Prehensors, Messengers, and Consignees, for carrying on the necessary intercourse between the judge, on the one part, and things and persons on the other.
71 or 2. Also,—that while, in the several cases of Judge, Registrar, and Eleemosynary Advocate, it is expedient that whatsoever deputes have place, should be located by the respective principals,—in the case of a Prehensor,—after one or two located by the principal,—for others, in whatsoever number they may come to be necessary, to no person can this function be intrusted, other than the judge.
72 or 1. Under this head it is shown—how, by means of the summary procedure system,—by examination of the parties themselves at the outset of the suit, the nature of every part of a debtor’s property, being—each distinguishable portion of it—brought to view,—the sort of hands best qualified for taking charge of it will thereby at that same time be brought to view: and, to these same fittest hands, it may—each portion of it—at a comparatively inconsiderable expense, be thus disposed of to the greatest possible advantage.
73 or 2. This course being pursued, done away will be the three abominations—the Bailing system, as carried on under the present practice; the Bankruptcy system; and the Insolvency system: and, by these means, the property of a person who is not able to pay the whole of his debts, will be divided in equal proportions among his creditors, instead of being, as at present, in the case of bankruptcy, shared among the lawyers in vast proportion, and in the case of insolvency, almost the whole of it, between the lawyers and the confidential friends of the insolvent; among these, for their use and his, as he and they can agree.
74 or 3. In the case of the business of holding to bail, as carried on under the regular system according the present practice, the benefit of the change is no less applicable to the case of common law suitors than to yours. But, as it is by your case that this application of it was suggested, it is for your information that it is thus for the first time brought and held up to view.
Grounds of Decision.
75 or 1. Prepare here for another outcry. Enter now (for, perforce, I must present it to you) the Disappointment preventive, or say Non-disappointment principle. Why thus present it to you? Answer: Because, of all the decisions which my Dispatch Court judge will have to pronounce, this will, in almost all cases, constitute, either the sole ground, or, if principles more than one have application to the case, the main ground. Because, of every part of the rule of action which has property for its subject-matter—civil branch and penal branch taken together—this, next to the Greatest Happiness principle, is the main foundation. Because, in the genealogy of human feelings, this is the immediate lineal descendant of that same parent principle.
76 or 2. Which is there of you all that does not know, that disappointment has for its inseparable accompaniment a pain? a pain—the intensity of which, where money or money’s-worth is the subject-matter, is in the direct ratio of the value of it in his eyes, and in the inverse ratio of his affluence.
77 or 3. Reader! whoever you are—in relation to anything you look upon as being yours—a coat, for example, that you are in expectation of from the tailor’s—put to yourself, and make answer to, two questions. Question the first—would it not be matter of more or less uneasiness to you to learn that it had been stolen from you, or taken from you by somebody under the notion of his having a right to it? Question the second—looking at any other man, does the thought that the coat which he has on his back will be kept by him and not given to you, occasion any such uneasiness? Assuredly not. Well then: here you have that which, on the ground of reason, is the main foundation of the law of property, in both its branches—civil branch and penal. Yes, on all great occasions, in all high places, and more particularly in the highest—in Houses Honourable and Right Honourable, this it is that men mean, if they mean anything—this is what they appeal to, though, till now, no name has there been to call it by, when they appeal to “the first principles of justice,” or to give to the ground its utmost strength “every principle of justice.”
78 or 4. This being the case, it is shown, that, for the dispatch of suits, in which it is your misfortune to be embarked,—no regard need be paid, or ought to be paid, to any rules, on which, in the Courts in which you are respectively undergoing plunderage, the proceedings have been grounded. For, that no decision can be more decidedly in contradiction to any one of those rules, than, in instances in vast abundance, those same rules are to one another; and that accordingly a much better chance for the prevention of disappointment will be obtained, by aiming at that object immediately, than by aiming at it through so unconducive, and in every respect unapt a medium, as that which is composed of those same rules.
79 or 5. That in the employment thus given to a new standard of reference, not so much as the weak and stale objection of innovation can with truth be applied: for—if, for the overruling the disposition made of property by the Equity Courts, a new rule of action, with a correspondent system of procedure, is employed, in and by the proposed Dispatch Court,—the Equity Courts will receive no other treatment, than they themselves, in their origin, gave, and thenceforward have always been giving, to the Common-Law Courts.
80 or 6. Were it even true, which it is not, that, of reference made to the non-disappointment principle, to the disregard of all the so-styled established rules, decision relatively wrong would in each case be the result—still, upon the whole, good not evil would be the result; for, by the system of procedure proposed to be employed, more evil will be done away with than by the misdecision would be produced; more evil, namely, the suffering produced by the delay, vexation, and expense.
81 or 7. That, to obviate a class of phrases, by which the relief proposed to be given to you would not fail to be opposed by your plunderers and oppressors, namely, that the consequence would be—the shaking of foundation, violation of vested rights, and so forth—still meaning, if anything, neither more nor less than the production of disappointment, with the suffering attached to it;—to obviate (I say) these objections,—an enactment that would certainly be effectual, and might perhaps be advisable, is—that, in all suits in which you are not parties, the complicated rules, such as they are, shall continue to be observed; and that accordingly in no one of such suits shall reference be ever made to any rule of the Dispatch Court system, which is in opposition to any one, that at the day of the institution of this same Court, can be found established by the existing Equity Court system: established, that is to say, in so far as two rules that are the direct opposites of one another, can, with truth, be said—both of them—to be established. In the Bill, reference will be found made to some of those same sets of mutually conflicting rules.
Suits—their respective suitableness to this purpose.
82 or 1. Questions. Of all the proposable suits—to which, if to any, is it inapplicable? Among those to which it is inapplicable, are there any, and what, to which, by any apt additament, it might be rendered applicable?
83 or 2. Answers, these:—Suits, to which it will not be applicable, are those in which the existence is perceived, of an indispensably necessary piece of evidence,—such, that by no means which the Dispatch Court is in possession of, can it be rendered likely to be forthcoming, within the time proposed to be allotted for the continuance of this judicatory. True. But, by the giving perpetuity to it in the first instance, this bar to its suitableness would be effectually removed.
84 or 3. Suits, to which, though otherwise inapplicable, it might be rendered applicable by an additament, are complex suits: additament, the institution of auxiliary judges; as to which, see the next section—section xi. Auxiliary Judges for complex Suits.
85 or 4. To all suits, not contained within one or other of these descriptions—it will be simply and completely applicable.
86 or 5. To suits of the above-mentioned descriptions respectively, present themselves as called for, the following explanations.
As to suits disqualified by non-forthcomingness of evidence, this circumstance depends not on the nature of the demand: it constitutes not any particular class of suits: it is what may have place in the case of any individual suit of any class.
87 or 6. In regard to your suit, proposed Petitioner, whoever you are,—antecedently to your having any trouble, other than that of making appropriate communication in answer to this invitation, it will be ascertained—whether or no it will be for your advantage to give ultimate acceptance to it; ascertained, that is to say, by the examination, to which your solicitor will have been subjected by the Dispatch Court Judge.
88 or 7. As to these same complex suits—the complexity has for its main cause—the multitude of the suits, or say demands, which have to be disposed of; and thence, the multitude of the several simple suits, which, in virtue of, and in the course of this one, may eventually have to be disposed of.
89 or 8. This complexity may have had one or both of two principal causes:—1. Multitude of the individuals or bodies of men, among whom an already formed mass of property may have to be distributed; demandants, the several claimants: 2. Multitude of the individuals or bodies of men, from whom the several portions of the matter of the aggregate may have to be collected, and the aggregate thus to be formed: demandant or demandants, some one person, or set of persons, on whom this right has devolved.
90 or 9. Take for examples these. They may be seen rising one above another in the scale of complexity.
91 or 10. i. Suits, in the course of which a mass of government annuities may have to be disposed of, among claimants and other persons interested, in any number.
92 or 11. ii. Suits, in the course of which the shares in a joint-stock company may have to be disposed of.
93 or 12. iii. Suits, in the course of which an estate in land, or the price of it, may have to be partitioned out among a multitude of persons interested.
94 or 13. Follow now, examples of suits, in the course of which, antecedently to distribution or other mode of disposal, collection may have to be made.
95 or 14. i. Suits, having for their source, decease; for their subject-matter, property of the deceased:—assets to be collected from debtors:—the aggregate to be disposed of among creditors.
96 or 15. ii. Suits, having for their source insolvency on the part of a non-trader; subject-matter to be first collected and disposed of, what remains of the property of the insolvent.
97 or 16. iii. Suits, having for their source insolvency on the part of a trader;—insolvency, styled in this case, bankruptcy: subject-matter, property of the allegal bankrupt, as above. Machinery employed in this case of insolvency, altogether different from the mode employed in that other case: why should this be?
98 or 17. These complex suits,—together with those which are wire-drawn into length by non-forthcomingness of evidence or sources of evidence,—are the suits, of which, by the adversaries of reform, advantage is taken, in their endeavours to make men believe,—and in particular, make you children of affliction, believe—that it is in the cruelty of Dame Nature, not in the wickedness or weakness of the powerful among men, that your affliction has its cause.
99 or 18. These complex suits, in particular, are the suits, on the occasion of which it is, that advantage, to so great an amount, may be derived, from the temporary and instrumental distribution—of the whole number of those portions of a mass of property which require distinct management,—among a multitude of trustees under the above-mentioned name of consigness: all operating at the same time and making a correspondent defalcation from the mass of delay; each of them specially apt for the management of the subject-matter committed to his charge: instead of their being—the whole number of these how differently soever circumstanced portions—committed indiscriminately to the mercy of the hammer, under the charge of a species of trustee, or set of trustees called assignees, who cannot be equally competent to the management of concerns, to which in any number, and in any degree, it may happen to be mutually dissimilar.
100 or 19. i. If the change—let men call it, if they please, the innovation—was beneficial when begun and continued blindfold in a dark age, is it the less likely to be so, by being effected in an enlightened age?
101 or 20. ii. If it was beneficial when carried on step by step at the command of accident, without any view ever taken, other than such as the individual case in hand necessitated,—is it the less likely to be beneficial for having been the result of all-comprehensive views?
102 or 21. iii. If it was beneficial—if it was constitutional,—when performed without a plan, by the nominee of the King alone, without the least cognizance taken of it by either House of Parliament,—is it the less so for having been subjected to the utmost copiousness of discussion in both Houses of Parliament?
103 or 22. iv. If it was beneficial, when the Judge by whom application was made of it, was a Judge appointed by the King alone,—is it the less likely to be so by being applied by a Judge elected by the votes of all persons whose interest it is that the Judge so appointed should be a man endowed with appropriate aptitude in all its shapes?—votes, not exposed to corruption?—votes given by persons whose interest—that of every one of them—is coincident with the ends of justice, to the exclusion of all whose interest is in opposition to the ends of justice?—the King, moreover, having a negative, in virtue of which no person disapproved by him can be seated in the office?
104 or 23. v. If decrees and preparatory orders are likely to be beneficial when made by a Judge, who, antecedently to his being charged with the branch of judicature carried on in this judicatory, had never had any the smallest experience in the business of it,—by a Judge, the choice of whom has been produced by considerations foreign to the ends of justice—considerations suggested by the interest of party,—are they the less likely to be so when made by a Judge, in the choice of whom experience, and reputation for the most consummate acquaintance with this very branch of business, will have operated of course as the first of recommendations, to the exclusion of all party interests?
105 or 24. Finally, as to the interest of the lawyers, and any hardship to them, that may be imagined to be, or even any that may really be, the result of the relief thus proffered to you.
106 or 25. i. This relief—shall it be in the power of these men to prevent your obtaining it? to prevent you on any such ground, any more than on any of their most groundless pretences?—No, surely.
107 or 26. ii. If, having had a dispute one with another, you had chosen to come to an agreement of yourselves, could they have prevented you?
108 or 27. iii. If you had chosen to have recourse to arbitration, could they have prevented you?
109 or 28. In the present case they have already had more or less of the plunderage: plunderage, to the amount of dozens, hundreds, thousands, or tens of thousands of pounds; through the vexation and oppression heaped upon you by the artificial delay, for days, or months, or years, or dozens of years.
110 or 29. Compared with your suffering by the plunderage, small will be their suffering by the stoppage of it: small, when the aggregate is compared on both sides: small, when the comparison is between individual and individual: small, when compared with yours the suffering of any one of your lawyers, or all of them put together. Refusal of summary procedure to you out of tenderness to lawyers—what would it be? It would be refusal of drainage to a pestilential marsh out of tenderness to apothecaries and undertakers.
111 or 30. Whether, at the expense of the whole community, compensation—any, and if any what—can be, and ought to be, given to them for such their loss—questions these, which, it must be confessed, present themselves as not unentitled to consideration: be this as it may, no just ground can they afford for any refusal of relief to you from your plague.
112 or 31. In the utmost possible hardship to them, can any reason be found why they should be permitted to go on plundering and tormenting you for any additional number of years, months, or so much as days? Will you lie motionless under all this load?—Forbid it, self-preservation!—Forbid it, common sense!—Forbid it, justice!
Auxiliary Judges for complex suits.
113 or 1. In so far as dispatch is the object,—proportioned to the degree of complexity will naturally be the number of any judges among whom the matter of a suit of this sort may require to be distributed. Relation had to the Dispatch Court Judge, by whom the distribution will have to be made, are these same Judges styled Auxiliary Judges.
114 or 2. Whether or no the suit is of the number of those which stand in need of such machinery, for this purpose—and if yes, what shape it shall take,—these are among the things which, in the instance of each suit, antecedently to your appearing, if at all, before the Judge, will be ascertained by the examination of your respective solicitors.
115 or 3. As to the choice to be made of them, and the remuneration to be allotted to them, in so far as needed, these matters will be seen settled in the Bill.
116 or 4. As in the case of arbitration,—if, and in so far as, they are to be had gratis, so much the better: where they are not, matters must, if possible, be so ordered, that they shall not be gainers by delay; that accordingly their payment shall not be by the day:—a per centage upon each sum received by the party to whom it is due, payable at the charge of the party in the wrong, presents itself as the best adapted mode.
INFORMATION REQUISITE FROM PETITIONING SUITORS.
1. Now as to the heads, under each of which, at your hands, if it be your wish to take the benefit of the proposed transference, information will be necessary or may be desirable.
2. Some there are, in relation to which it will be matter of necessity that information should be received:—received, if not by myself, at any rate by the Member by whom the Bill is moved; to the end that, if received by both, we may settle with one another, whether the number of the suits from which the communication has come, be sufficient to afford a sufficient ground for the hope that the measure will experience the requisite attention on the part of the Honourable House.
3. The information had best, all of it, be in the handwriting of the proposed Petitioner; it must be under his or her signature.
4. It may be attached to a printed copy of the proposed Petition to the King.
5. Each article of the information should be numbered with the same number as that by which the head it belongs to is distinguished.
6. Desirable it is, that the paper should receive this identification, as a security for correctness; and that the information conveyed by it may be always under the eyes of those to whom it belongs to have it under consideration, and without being exposed to the hazard of being mislaid after it has been received.
7. Of this indispensable part of the whole number of the particulars, the eventual purpose will be—the constituting your title to vote at the election of the Judge; but the election will not take place, nor, consequently, you or your agent be called upon to appear, unless and until the Act has passed: the petition will be your title-deed.
8. As to the other heads,—it may be, that you are not, of yourself, able to furnish the information, and that your solicitor is the only person through whom you are able to procure it. These are among the heads, in relation to which, in the event of the passing of the Act, and the institution of the Court in consequence,—the solicitor will have to be examined by the Judge, to enable the Judge to determine whether to take the suit under his cognizance.
9. But, the more there are of those heads, in relation to which the information is conveyed to myself and the Member in question, the better; our conception of the nature of the suit, and of the quality and quantity of the benefit to you that may be expected from the whole measure, will be the more particular and encouraging.
10. Of this information, any part which you yourself are not able to furnish, you will see how imprudent it would be for you to apply for at the hands of your solicitor, unless it be perfectly clear to you, that your learned adviser is so circumstanced, as to be really desirous of seeing the speediest termination put to the suit, and consequently to his profits from it.
HEADS UNDER WHICH THE INFORMATION IS TO BE WRITTEN.*
1. The proposed Petitioner—his or her name at full length.
2. Petitioner’s age; so far as to show whether it is full age or under age.
3. Petitioner’s condition in respect of marriage: whether bachelor, married man, or widower; spinster, married woman, or widow.
4. Petitioner’s occupation, or other condition in respect of rank and situation in life: for example, in the male sex, Member of either Houses of Parliament;—Member of the Official Establishment, mentioning the office held by him;—person of either sex living upon his or her fortune. If a married woman, the like in regard to her husband.
5. Petitioner’s residence at the time of transmitting the information; the description given of it being such, that a LETTER may be sure of reaching him or her.
6. Indication of any change contemplated at the time by him or her: with promise to give the like information, in case of any eventual change, up to the time when leave to bring in the Bill is refused, or the Bill thrown out.
7. Name of the suit in the Equity Court.
8. Name of the Court itself; whether Chancery or Exchequer; if Chancery, whether Chancellor’s, Vice-Chancellor’s, or Master’s of the Rolls. If in the House of Lords on appeal, whether it is from the Chancery or the Exchequer.
9. Names of the several parties to the suit: mentioning whether they are so in their own right respectively, or in the right of some other person or persons: adding, in this latter case, information as to their respective principals, under the six first of the above heads.*
10. In the case of a person who is a party concerned in right of another,—state in what capacity he or she is thus concerned: for example, husband; guardian; executor; administrator; residuary legatee; agent whose principal (mentioning whom) is resident out of England, trustee of money in trust for payment of debts; principally acting member of a joint-stock company: in the case of a partnership, the like information in respect of each of the partners: in the case of a suit of which a ship is the subject-matter,—name of the ship, with the names of the several persons therein interested as owners, and information under the above six heads as to each.†
11. Subject-matter of the demand made by the suit.
12. Day of the commencement of the suit.
13. In case of any bills subsequent to that in which the suit took its commencement, mention thereof respectively: for example, whether supplemental bill, or bill of revivor.
14. If the bill be a bill for the examination of witnesses in perpetuam rei memoriam, mention accordingly.
15. Stage of the suit: to wit, as expressed by the written instruments that have been made or required to be made, with their respective dates: as answers, demurrers, pleas, &c.: giving a separate account, in relation to each of the several sorts of bills filed, if more than one, on the occasion of the same original bill, as per No. 13.
16. If examination of witnesses (including parties examined in the manner of witnesses) is going on, mention of the day on which it commenced.
17. If the suit is before a Master,—mention whom, and at what time it went before him, and for what purpose.
18. Town Solicitor or Solicitors, who: with direction to their office.
19. Aggregate expense of the suit to the Petitioner, down to the day of communication: distinguishing, if there be no objection, between expense paid by him and expense incurred.
20. Aggregate expense, as far as can be learnt, or computed, of the several other parties respectively, or of the aggregate of all, down to the day of the communication.
21. So any estimate that can be made, of ulterior expense.
22. Make mention of the aggregate of the expense of any branch of the proceedings which happen to be in a particular degree expensive; giving, in this case, the particulars of the expense: for example; commission to examine witnesses, at home or abroad; costs of the sale of an estate in land, or of making out the title to such an estate.‡
To conclude. You have now seen a short sketch of the species of procedure proposed, with the judicatory for the application of it.
From this, short and necessarily imperfect as it is, some judgment may be formed by you, whether the plan does not afford some promise of relief from the torment under which you are suffering. If, with this before you, you remain motionless,—be this your torment ever so severe, you have yourselves to thank for it. By sympathy for your sufferings have been produced the labours, of which the system you see before you is the fruit. Will you be any longer an object of sympathy, if, by silence instead of answer to this address, after so much has been done for you by others, you grudge to perform so trifling a labour for yourself?
The greater the number in which you and your partners in affliction raise your cry for this relief, the greater will be the probability of your obtaining it. This truth being alike obvious and incontestable, not less so will be the service that may be done by you to your own and the common cause, by looking out for them, and calling for their co-operation.
And you, whom, as yet univisited by this scourge, these pages have chanced to reach,—sympathy,—if any such feeling belongs to you, and no particular interest restrains,—will elict from your hands, according to your means and opportunities, all assistant services. “Cry then aloud, and spare not!”
[* ]See Vol. V.
[* ]It will be seen that this arrangement was afterwards slightly departed from by the author.—Ed.
[* ]Number of them, down to the 49th of Geo. III. 62: as per Abstract, &c. by John Tidd prat; Esq. 1829.
[* ]In the original edition, these heads are printed only on one side of the leaf. Appended to them are the following
Directions for communicating the information.
2. Placing both leaves on one level, at the top of the length of it, and at the middle of the breadth, paste one of the leaves of this pamphlet: for this purpose it is that these leaves are printed on one side only.
3. Do so, by each of the leaves which are printed for this same purpose.
4. Write the matter in a fair and compact hand: if perpendicular, so much the better; because the more legible.
5. Of the paper in question, that part which is below the letter-press divide into four equal columns, for receiving the information in manuscript: columns thus narrow in preference to the whole breadth. Leave the two spaces, one on one side, one on the other, of the letter-press, in blank, for the purpose of receiving any such observations as I may see occasion to make.
[* ]As to heads 8 and 9,—note, that some persons there can scarcely but be, who may not be able to forward correct information in relation to thoseheads. So, perhaps, under No. 7.
[† ]A remark here is necessary in regard to trustees. At the hands of one who is party to a suit, no otherwise than in compliance with the forms employed by conveyancers, without his having had any confidence reposed in him—no reason can there be why any information should be looked for; no reason why any participation in the Petition should be considered as requisite, or conducive to the purpose of it.
[‡ ]A case is just now mentioned to me, in which the costs of the commission to examine witnesses amounted to £9000: this from a person who was in possession of the particulars.