Front Page Titles (by Subject) SECTION III.: DISPATCH COURT BILL—SOME ACCOUNT OF IT. - The Works of Jeremy Bentham, vol. 3
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
SECTION III.: DISPATCH COURT BILL—SOME ACCOUNT OF IT. - 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.
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
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.
[* ]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.