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PREFACE. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 3 [1843]

Edition used:

The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 3.

Part of: The Works of Jeremy Bentham, 11 vols.

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PREFACE.

Summary Procedure, or Regular Procedure? that is the question. To regular, substitute summary procedure everywhere. Seldom has change so important been found expressible in so few words.

The regular mode being found loaded with the mass of factitious expense, delay, and vexation,—that everybody sees and feels,—the summary altogether clear of it,—why then not substitute to the regular, the summary mode at once? The good being so palpable and so undeniable, if any evil there be that would result from it, upon you the objector it lies to set it forth.

Is it, that by the substitution, ultimate justice would be rendered less likely to be the result? This, then, it lies upon you to show. But this is what you never can do. The contrary I am prepared to show, on any occasion whatsoever.

Take any one of the several operations by the performance of which, and instruments by the exhibition of which, it is, that the regular procedure is characterized and distinguished from the summary,—I am prepared to show the mischievousness of it: how it contributes to needless delay, expense, and vexation; how it obstructs, instead of contributes to, rectitude of decision, and the giving execution and effect to the provisions made by the main branch of the body of law.

Here then, and in the compass of a single page, the question is decided—decided in every mind which is not closed against the light of truth by sinister interest, interest-begotten prejudice, custom-begotten prejudice, or authority-begotten prejudice.

In the present state of the law, all those who are to a certain degree opulent, behold it in their power to divest of any part or the whole of their property, all those who are relatively indigent: the instrument which, in one sense of the word, offers itself for this purpose, is an equity suit; the instruments which, in another sense of the word, join in this offer, are the equity lawyers.

That this state of things should continue as long as the human race continues, is not in the nature of man and things;—so intolerable to human feelings will be sooner or later the mass of misery produced by it; so shocking and disgusting the demoralization in the eyes of all men of common honesty; becoming, as it will be, more and more so, in proportion as the form of government receives that improvement which, while these lines are writing, is so happily progressing. If by the constituted authorities, whatsoever at the time in question it may happen to them to be, an end be not put to such a scene of misery and vice, this grievance will of itself suffice to cause the then existing form of government to be changed to some other, in which the official situations shall be occupied by men, in relation to whom a general assurance has place of their determination to substitute to the system of procedure which has for its object the promotion of the prosperity of the lawyer tribe and their partners in iniquity, a system which has for its object the promotion of the prosperity of all besides, by the fulfilment of the ends of justice.

To say that the change so expressed will be made, is to say, that amongst other things the existing Equity Courts will be abolished, and the suits at that time in their hands will be transferred to other judicatories, having for the ends of their procedure the ends of justice; in other words, proceeding in the natural—that is to say, the summary—mode, instead of the existing technical mode.

The present work is designed as an instrument for the purpose of effecting this change.

In the composition of whatsoever discourse has the effect of law, two operations are, in the very nature of the case, of necessity conjoined,—the initiative and the consummative: the consummative cannot be the work of any other hand than that of the supreme authority of the State; but for the initiative, no individual is there in the human race to whom the nature of the case does not lay open a chance for the performance of it—a chance, the probability of which will be in proportion to his aptitude.

For this chance the author of these pages is the first to put in: this comfort it is not in the power of sinister interest, clothed in authority, to take from him. In this assurance is contained the certainty, that sooner or later the present draft will be taken into consideration.

It consists of a system of arrangements by which an experiment will be made on a small scale of summary procedure; a system of petitioning being the machinery employed in the introduction of it. In two cases this machinery will not have to be employed:—I. If the rulers do the work without it willingly; 2. If unwillingly. In either case, what regards the machinery will be useless; but it will not render useless any other part.

An already-published work is the Equity Dispatch Court Proposal: its object, producing the requisite number of petitions by Equity suitors. Framed under the expectation of the accession of this number were the eight first sections inclusive, as well as some other subsequent portions. Before the rest was finished, such accession was become hopeless; but by this change no reason was afforded for losing the labour employed on the parts that remain applicable.

That which is believed to have been the cause of this non-accession, was on the part of the suitors dread of the Equity lawyers: but for that, it is not in the nature of the case that any relatively honest substitution of a system in which delay and expense are minimized, for one in which they are maximized, should have failed to be accepted.

For clearing off the arrears in the Equity Courts, a talk has every now and then had place at the Bar,—a talk of a set of commissioners:—number, precedent would of course say, three. Mode of procedure, what? Of course, the accustomed.

Simile, according to the French proverb, employing ink to bleach ebony.

Learned gentlemen in whose eyes this mode of decision finds favour, would they substitute minutes of delay to years, shillings of expense to scores or hundreds of pounds, decision none but on the merits, to decision sometimes on, sometimes off the merits? They know better things. Among Equity lawyers, procedure by affidavit-evidence goes by the name of summary. What a libel on the only honest mode! Call affidavit-evidence-elicitation summary!—as well might you call arsenic sugar,—yes, sugar of lead.

To the arrangement thus proposed, two propositions present themselves: one is, that it is not likely to be found capable of being carried into effect; the other is, that if carried into effect, its doing more harm than good is at least not less likely than its doing more good than harm.

As to its not being likely to be carried into effect.—On every occasion, the main consideration, if not the sole one, is, it need not be said, the convenience—that is, the interest—of the influential ones among the lawyers: as to that of the million, if it be in any degree an object of consideration, it is but a secondary one.

In regard to Judge-power—(a term the meaning of which, if not understood by itself, will be understood by all who understand that of horse-power,)—a notorious subject of complaint is, the deficiency of it already. Any such fresh commission would either be composed or not composed of judges. If composed of judges, the deficiency of that same judge-power would be enhanced, and the correspondent evil increased. If not of ready-made judges, then would there be to be made a new batch of judges, to be put over the heads of the existing ones,—a sort of scandal, in a high degree offensive to that dignity, in comparison with which the interest of suitors shrinks into insignificance.

The arrear extinguished, then would the so-anomalously-elevated judges fall back into the condition of barristers, were not pensions of retreat the panacea for all the pains that are felt by those whose feelings are of any importance: and in the case of these representatives of, and substitutes to the Lord High Chancellor, the weight of this panacea would not be a trifle.

Fearful of this descent, the probability is, that those the first located would continue in office all their lives long, and be followed by a never-ending train of successors. The cause remaining, so would the effect. As in a meadow, while the first crop was cleared off, another would be coming on. The Superior Common-Law Courts’ Inquiry Commission has had two effects:—staving off the actual application of all remedy—of all, even inadequate—of all, so much as palliative, remedy:—and the giving increase to the quantity and value of the mass of patronage.

The ensuing proposed law, with its accompaniments, has two purposes: purposes intimately connected, but at the same time perfectly distinguishable.

One is,—and that the main and ultimate one,—assuming the inaptitude of the existing system of procedure with the judicial system occupied in the application of it, to demonstrate by an appropriate experiment the aptitude of a different one, the arrangements for which are accordingly exhibited in the form of a Parliamentary Bill. The use of the experiment is to prove, at a small expense, the usefulness and adequacy of an institution which could not in its entirety be established but at an expense the magnitude of which might, without such a guarantee, oppose a pecuniary bar (how economical soever it might prove in the long run), to its adoption.

The other purpose is,—by means of this same Bill, if passed into an Act, to afford immediate relief to as many as choose out of the whole number of suitors, in that class of the existing judicatories whose inaptitude is most universally notorious, and the sufferings produced by it on the part of suitors most severely felt, and loudly complained of. This less extensive object of the two is the only one to which the provisions of the Bill have any immediate application.

Different species of matter all along in this Bill accompanying each other, and all bearing relation, and applied to the same subject:—namely,—1. Enactive; 2. Instructional; 3. Exemplificative; 4. Ratiocinative; 5. Commentative,—or say Illustrative, composed of Notes to the above: Office of these Notes bringing to view the dispositions made in relation to the same subject in and by the existing system.

Of the first four, and the use of them respectively, some account may be seen in the publication intituled “Official Aptitude Maximized, Expense Minimized,” (Vol. V.) Of the Enactive, no farther mention will here be requisite, other than that it is the same species of matter of which all codes as yet in existence and force have been mostly, if not exclusively, composed,—composed chiefly, if not wholly, to the exclusion of all other matter. In this or that one of those codes, here and there may perhaps be found a slight sprinkling of the exemplificative matter detached from the general matter of which the enactive portion is composed.

On the occasion of this Bill, the course that has been pursued is as follows:—On this, as on former occasions, under one or other of those four heads, alternating as occasion calls, the matter all along presents itself: enactive, exemplificative, ratiocinative, and instructional; to which is here added, the annotative, i. e. notes. Of the annotative, no part, it will be manifest, can have been intended to receive the touch of the sceptre; the other parts respectively may be employed or not, according as it may be the pleasure of the constituted authorities. That styled enactive is in substance every part of it regarded as indispensable: it may be employed in its present form, or, in case of necessity, it may be translated into the customary form; which, however, in the judgment of the draughtsman, it cannot be without detriment in large quantity and in a variety of shapes. That even in case of such translation, more or less use of the exemplificative matter may be made, seems not altogether improbable: that in that case any use should be made of the ratiocinative, seems altogether hopeless; and in much the same case seems to be that to which the word instructional has given the name.

In the English statutes, a practice hitherto prevailing has been to preface each one by a sort of attempt at a rationale, composed of a paragraph, or a string of paragraphs, strung together by so many repetitions of the conjunction “whereas.” In the judicial decrees of French procedure, the same function is performed by so many repetitions of the participle “considerant,” followed by the adverb “que.” Of this arrangement, one consequence is the painful strain upon the mind while it is kept in suspense, panting under the conjecture what can be the end of this introduction, which in one instance has been observed to contain matter enough to give expression to a story capable of filling a volume. Eminently ill adapted to the purposes of language seemed the grammatical form thus given to the matter. To the more important reform in the matter this little alteration in the form presented itself as no inapt prelude.*

When into the texture of an Act of Parliament anything in the shape of a reason does find its way, the preamble is always one place, and most commonly the only place, in which it is inserted; though now and then to this or that particular section a particular preamble is prefixed. Generally speaking, the matter of the Act, be it ever so voluminous—for all this ratiocinative matter no more than one spot. It may hence be imagined how vague and loose the most instructive terms that the case admits of cannot but be. My practice, exemplifications of which have already been given, is—to give to each enactment, or intimately connected with it, its own set of reasons—its own ratiocinative matter, as I have found convenience in denominating it. But readers of Acts of Parliament being in use to begin with a preamble applying to the whole aggregate, it has seemed good to me for their accommodation to submit to their consideration the following one. Should it not be found to embrace every topic touched upon in the Bill, it will at any rate be found to touch upon the most considerable in number and value, as the phrase is in regard to creditors. The need of the whole of this introduction being, in my view of the matter, superseded by the specially applying, and constantly concomitant matter above mentioned, it seemed not worth while to expend more time, labour, matter, and space, in the endeavour to render it all-comprehensive. Thus much in deference to custom and authority I have done. But, to squeeze the whole of the matter into the compass of one sentence,—this is what I could not prevail upon myself to do.

Not only in the Statutes at large, but in the Bill there to preparatory, marginal abridgments are constantly inserted: in the present Bill no such additament has been made. In the cases in which this instrument of elucidation is employed, its indispensableness is indisputable. The matchless diffuseness and lengthiness of the plan constantly pursued is such, that but for these helps the difficulty of forming any tolerably clear and comprehensive conception of the matter for the current purposes would be extreme: proportional the number of those who would give up the attempt altogether, and of those in whose minds misconception would with more or less frequency have place. In the present instance, no such repulsive and pernicious lengthiness having place, insertion of the sort of notes in question has been regarded as a superfluity that might without inconvenience be omitted.

State of things in regard to the two systems—the here-proposed system, and the existing system:—reader, as you read, mark well whether it be not as follows:—

Under the here-proposed system, strong and adequate powers—strong and adequate securities, against abuse: under the existing system, weak and inadequate powers—weak and inadequate securities against abuse.

Of good, under the here-proposed system, multum in parvo: under the existing system, parvum in multo—of evil, multum in multo.

For and under the here-proposed system, preliminary and preparatory survey of the whole field of law, all-comprehensive: under the existing system, preliminary survey of the whole, or any considerable part of it, none.

For and in the here-proposed system, over the whole expense of the field, roads made straight and broad: under the existing system, paths erooked and narrow.

Wretchedly adapted as the existing system may all along be seen to be to its professed purpose, admirably adapted it has been found to be to the interests—the particular and sinister interests, and thence to the main purposes, of its contrivers and conductors.

In what proportion moral, and in what proportion intellectual causes have been contributory to the effect, it is not possible to determine: in what proportion the sinister interest, in what proportion the want of appropriate knowledge, judgment, and active aptitude: nor to the present purpose in any greater degree is it needful than practicable.

To the legislator belongs the task of doing away with the sinister interest, and thereby securing moral aptitude: to individuals, that of supplying appropriate knowledge and judgment, and thereby furnishing guidance to all such legislators and other rulers as are in possession of the appropriate active aptitude: and this service, happily for mankind, no sinister interest in the breasts of rulers has been able to prevent the performance of.

Moreover, in regard to laws, though in the giving birth to them the consummative, the obstetric part, is everywhere confined to rulers, yet is the initiative, the generative, everywhere by the very nature of things left open to individuals—to all individuals—to the best qualified, as well as to the worst qualified,—under the most absolute and maleficent government a man may write, and for publication convey the product of his labour to happier climes.

Reader, mark well the character of the arguments with which the proposed system will be combated. With the exception of such of them, by which imperfections and correspondent need of amendment are brought to view, observe whether there are any that come to close quarters: see whether they may not be found written, all of them, in the “Book of Fallacies.” (Vol. II. p. 379.)

Necessary to the accomplishment of the purpose of this Act—necessary, on pain of utter inefficiency—is perfect self-sufficiency on the part of the proposed Dispatch Court: namely, by the possession of powers sufficient for the accomplishment of this same purpose, not only without aid from any other judicatory, but even notwithstanding any resistance or obstruction capable of being opposed to it, whether by individuals taken at large, or by any other judicatory whatsoever.

Operations for the performance of which corresponding powers are hereby lodged in the hands of the Dispatch Court Judge, are accordingly the following:—

i. Stoppage of the proceedings in the several Courts in question, from the cognizance of which the suits are respectively meant to be transferred to that of the Dispatch Court Judge.

Taking into the custody or power of the the Dispatch Court Judge, all documents and written instruments at large, the inspection and possession of which may be necessary to the accomplishment of this same purpose.

iii. So, all subject-matters, corporeal or incorporeal, moveable or immoveable, the disposal of which by the said Judge may be necessary to this same purpose:—disposal, whether definitive at the conclusion of the suit in question, or provisional, or say instrumental or interlocutory in the course of it.

iv. Surmounting all resistance and obstruction capable of being opposed to the performance of any of the above-mentioned operations.

v. Elicitation of all such ulterior evidence, whether personal, real, or written, the possession or inspection of which may be necessary to the accomplishment of this same purpose.

vi. Applying, upon occasion, adequate punishment to all persons concerned—either in the carrying on any proceeding after such stoppage performed as above (par. i.)—or in the opposing resistance or obstruction to any of the operations of the Dispatch Court (ii. iii. iv. v.)

vii. In case of need of aid to the Dispatch Court Judge, or the ordinarily employed subordinate functionaries attached to the service of his Court, as such, in the performance of any of the above-mentioned operations,—power to them respectively to call in and cause to be rendered the appropriate aid of all persons whatsoever, appropriate exceptions excepted.

viii. Obviating all proceedings capable of being carried on by any other Court, tending designedly or undesignedly to the frustration of this same purpose.

Necessary on the other hand is the securing the application of adequate punishment in the event of any abusive application of any of the above powers on the part whether of any functionary or any other person acting in subordination to the Dispatch Court Judge, or on the part of the Judge himself.

So much as to the necessity of these powers to the institution of the proposed Dispatch Court. Other topics not to be lost sight of are these:—

i. Of these same powers, the efficiency to the purpose in question, and their undangerousness to the procedure of the Court out of whose hands the suits are proposed to be taken: undangerousness with respect to whatever suits are left in their hands.

ii. Of the powers proposed to be given to the Dispatch Court at the charge of the suitors on both sides, the efficiency and undangerousness.

iii. Of the means of responsibility proposed to be established for the purpose of securing the suitors against danger of the abuse of the Judge’s powers, the efficiency and at the same time the undangerousness to him, and the unobjectionableness on his account.

But as to these qualities, the time for bringing them to view will not arrive till the arrangements themselves have been brought to view.

As to the necessity of the arrangements in question to the institution of the proposed Dispatch Court,—satisfaction on this head might not be satisfactory to every eye, if its undangerousness to the procedure of the existing Courts in respect of any preponderant evil were not clear. In their eyes, this necessity might oppose a peremptory exclusion upon the proposed institution altogether.

By all persons by whom dangerousness is alleged, let specific evils, not mere vague generalities, be adduced.

Be this as it may, their simplicity will not be questionable. Striking will be the contrast they will be seen to make with the existing system in every part of it. Egregious would be the misconception if the simplicity were, on account of its novelty, regarded as detracting from their efficiency: Simplicity and efficiency go hand in hand. So do, in the existing system, inefficiency, complexity, and entanglement.

With the here-proposed remedy, compare every other. In every as yet proposed change, behold either an exacerbation, or if a remedy, a wretchedly inadequate one, halting with tardy steps in the traces of a rapidly-advancing and wide-spreading disease.

Turn to an index of the Statute-book—Ruffhead’s, for example. Look at the general title, Amendment. Look at any of the numerous particular titles professing to have for their object the amendment, in some way or other, of the immense chaos. Think, in each instance, of the malignity and flagrancy of the abuse—of the length of time it must have continued—of the quantity of the suffering it must have been producing all that time—of the impossibility of its having been, any part of that time, overlooked by those in whose power it was to remedy it. How incapable of being continued without being purposely kept up—kept up for the sake of the filthy lucre, of the extraction of which it was the instrument! Think of the hundreds of years during which it had continued—of the reluctance with which it was given up, and of the parade of examining and re-examining, with so many hundreds of appropriately learned eyes, into practices, the depravity of which would manifest itself to any the slightest glance of any single—and howsoever inexperienced—eye not fascinated or blinded by the delusions spread around for that purpose! Amendment and reform with snail’s pace, abuse with racehorse pace.

You, who wish to do so, and think you can, find answer to these thoughts!

In the very nature of the case, among the effects of the here-proposed institution, one undesirable one, to a more or less considerable degree, cannot fail to have place, namely, detriment to the particular interests of individuals of various descriptions and classes, and in particular the class composed of professional men, the professors of the law. In relation to such detriment, justice requires that provision should be made; and it is hereby proposed, in mode and degree following.

Under and by virtue of the greatest-happiness principle, no such detriment to particular interests,—number of persons interested and value of their respective interests taken into account,—can afford a preponderant reason for putting a negative upon the proposed system of reform.

But under and by virtue of the non-disappointment principle, for all detriment thence resulting to particular interests, in every instance in which satisfactory evidence as to the existence and quantity, or say value, of the pecuniary loss, or detriment in any other shape, can be elicited, it ought to be elicited, and satisfaction in the shape of compensation in respect of it, to be administered.

Such compensation ought to be fully equivalent; and in case of doubt, it ought to be rather more than less than equivalent.

Reasons:—

i. The greater the benefit from the measure to the community at large, the better can the community at large afford to make the compensation required.

ii. Proportioned to the quantity of suffering by loss uncompensated, is the magnitude of the evil of the first order.

iii. So likewise that of the evil of the second order; that is to say, alarm produceable on the part of other individuals of other classes regarding themselves as exposed to be eventually detrimented by reform, real or supposed, set on foot by the same constituted authorities, or their successors. So likewise danger lest by the consideration of the individual operation in question in the character of a precedent, similar suffering should, under and by virtue of the imitative and the custom-following principles, be produced.

iv. Independently of all regard for the feelings of assignable individuals, prudence (that is to say, regard had to the probability of successful issue) suggests the propriety of doing whatsoever without preponderant evil can be done, for augmenting the probability of a successful issue by the removal of whatsoever opposition might otherwise be made.

v. With as little expense as possible to the community, should such compensation in this as in every other case be made.

vi. If accordingly, and in so far as such compensation can be made without expense incurred on purpose, as well as without preponderant evil in any other shape, it ought so to be made.

For example, if in lieu of the office the abolition of which is necessitated by the reforming measure in question, other offices require to be and are accordingly created, the quondam occupants of the abolished offices should, in so far as qualified to perform the duties of the newly created offices, be located therein, receiving at the same time adequate compensation for whatsoever, if anything, the remuneration attached to the new office falls short of being equal to that attached to the abolished office.

When everything has been done which the nature of men and things admits of being done towards making the aggregate of the enjoyment, derivable from the aggregate of the compensation, equal to the aggregate mass of suffering produced by the measure of reform, still there will be in most cases, and in this case in particular, an aggregate, nor that an inconsiderable one, of suffering, for which no compensation can by possibility be afforded.

To this head belongs the sort of humiliation, with the accompanying pain of mind, which a man cannot but feel when removed from pre-eminence in a certain branch of art and science, or from any situation in life by which in a greater or less degree the occupant is rendered in the eyes of the community an object of respect.

On the present occasion, the quantity of uncompensable pain produced from this source will unavoidably be pre-eminently great. A condition absolutely necessary to the establishment of the here-proposed new system is the extinction of the whole quantity of popular respect hitherto paid to the occupants of the abolished offices, in such sort that the quantity of respect possessed by each such dislocated functionary will thereupon be confined to that which will be paid to his individual character; and the objects of general desire which, when the measure in question has been carried into effect, will be found remaining to him.

The quantity of respect, then, attached to pre-eminence in the profession of the law, and more especially to official situations in the judiciary department, being of the first order, vying at least with the quantity attached to the other departments of government respectively,—proportioned to the enjoyment from the possession will be of course the suffering resulting from the loss.

From these considerations flow in every considerate breast two results:—1. The emotion and affection of sympathy called into existence by the consideration of the intensity and extent of the mass of mental suffering, above brought to view; 2. The anticipation of the force of the opposition with which the proposed measures of reform, how beneficial soever to the community at large, cannot fail to be encountered: the strenuousness of such opposition, and the extraordinary quantity of relative power possessed by the persons in question.

On the occasion of this opposition, the art of persuasion, including as a branch of it the art of deception in a degree of strength altogether incapable of being equalled in any other instance, common discernment will suffice for teaching a man to anticipate; weak indeed must be that discernment by which, in respect to the means used in an opposition so composed, sincerity in any degree on the part of any opponent can really be expected.

When for a mass of property—a dwelling-house for example, or a multitude of contiguous dwelling-houses—taken into the hands of government for the benefit of a neighbourhood or the community at large, compensation comes to be provided,—who is it that ever expects on the part of an individual proprietor unknown, sincerity in respect of the value by him assigned to it? or by whom would he to any such degree be confided in, as that, without some controul applied to it his declaration would be received? What would be the opinion entertained in respect of the probity or wisdom of a Finance Minister, who, after pronouncing an euloguim on the general probity, and on that individual occasion on the assured sincerity of the proprietor in question, should leave it to him to fix the price?

But on the one hand, the proprietor of a house or a street is not as such in any peculiar degree prone to insincerity; on the other hand, every person engaged in the profession of the law is. Much less is every such proprietor, a self-declared professor of the art of insincerity, while every individual embarked in the profession of the law is.

A consequence that does not absolutely follow is, that in respect of everything which he will say in opposition to a measure of reform such as that in question, every man engaged in the profession of the law—every man without exception, will to a certainty be insincere: but a consequence that does absolutely follow is, that on the part of every other man—every man not engaged in the profession of the law—who in taking into consideration the opinion delivered by an individual so engaged, on the subject of a measure which, in what degree soever beneficial to the community at large, was unquestionably detrimental to the aggregate body of the individuals engaged in the profession of the law, should regard absolute sincerity as being either certain, or even so much as equally probable with the opposite state of mind, no small degree of mental blindness would have place.

[* ]See Nomography, supra, p. 233.