The Online Library of Liberty

A project of Liberty Fund, Inc.

• Errata—vol. III.
• Defence of Usury; Showing the Impolicy of the Present Legal Restraints On the Terms of Pecuniary Bargains; In Letters to a Friend.
• Letter I.: Introduction.
• Letter II.: Reasons For Restraint—prevention of Usury.
• Letter III.: Reasons For Restraint—prevention of Prodigality.
• Letter IV.: Reasons For Restraint—protection of Indigence.
• Letter V.: Reasons For Restraint—protection of Simplicity.
• Letter VI.: Mischiefs of the Anti-usurious Laws.
• Letter VII.: Efficacy of Anti-usurious Laws.
• Letter VIII.: Virtual Usury Allowed.
• Letter IX.: Blackstone Considered.
• Letter X.: Grounds of the Prejudices Against Usury.
• Letter XI.: Compound Interest.
• Letter XII.: Maintenance and Champerty.
• Letter XIII.: To Dr. Smith, On Projects In Arts, &c.
• A Manual of Political Economy: Now First Edited From the Mss. of Jeremy Bentham.
• Chapter I.: Introduction. *
• Chapter II.: Analytical Survey of the Field of Political Economy.
• Chapter III.: Of Wealth.
• Chapter IV.: Of Population.
• Chapter V.: Of Finance.
• Chapter VI.: Operation of a Sinking Fund On the Production of Wealth.
• Chapter VII.: Noscenda.
• Observations On the Restrictive and Prohibitory Commercial System; Especially With a Reference to the Decree of the Spanish Cortes of July 1820.
• Preface.: Observations, &c.
• Section I.: Nature of the Prohibitory System.
• Section II.: Mischiefs of the Prohibitory System.
• Section III.: Causes of the Prohibitory System.
• A Plan For Saving All Trouble and Expense In the Transfer of Stock, and For Enabling the Proprietors to Receive Their Dividends Without Powers of Attorney, Or Attendance At the Bank of England, By the Conversion of Stock Into Note Annuities.
• Introduction.
• Chapter I.: Plan For the Creation, Emission, Payment, and Eventual Extension, of a Proposed New Species of Government Paper, Under the Name of Annuity Notes.
• Chapter II.: Form of an Annuity Note. (see Table II.)
• Chapter III.: Comparison of the Proposed, With the Existing Government Securities, &c.
• Chapter IV.: Grounds of Expectation, In Regard to the Proposed Measure.
• Chapter V.: Financial Advantages.
• Chapter VI.: Advantage By Addition to National Capital.
• Chapter VII.: Advantage By Addition to Commercial Security.
• Chapter VIII.: Particular Interests Concerned.
• Chapter IX.: Rise of Prices—how to Obviate.
• Chapter X.: Reduction of Interest—proposed Mode Compared With Mr. Pelham’s.
• Chapter XI.: Moral Advantages.
• Chapter XII.: Constitutional Advantages.
• Chapter XIII.: Recapitulation and Conclusion.
• Appendix A.: Government Ought to Have the Monopoly of Paper Money, As Well As of Metallic Money.
• Appendix B.: Paper Money—causes Why Not Circulated By Government Without Interest, As Well As By Individuals.
• General View of a Complete Code of Laws.
• Chapter I.: General Division.
• Chapter II.: Relations Between the Laws Concerning Offences, Rights, Obligations, and Services.
• Chapter III.: Relation Between the Penal and Civil Code.
• Chapter IV.: Of Method.
• Chapter V.: Plan of the Penal Code.
• Chapter VI.: Of the Division of Offences.
• Chapter VIII. Titles of the Penal Code.
• Chapter IX.: First General Title of the Civil Code, * of Things.
• Chapter X.: Second General Title of the Civil Code. of Places.
• Chapter XI.: Third General Title of the Civil Code. of Times.
• Chapter XII.: Fourth General Title of the Civil Code. of Services.
• Chapter XIII.: Fifth General Title of the Civil Code. of Obligations.
• Chapter XIV.: Sixth General Title of the Civil Code. of Rights.
• Chapter XV.: Seventh General Title of the Civil Code. of Collative and Ablative Events.
• Chapter XVI.: Eighth General Title of the Civil Code. of Contracts.
• Chapter XVII.: Ninth General Title of the Civil Code. of the Domestic and Civil States.
• Chapter XVIII.: Tenth General Title of the Civil Code. of Persons Capable of Acquiring and of Contracting.
• Chapter XIX.: Of the Particular Titles of the Civil Code.
• Chapter XX.: Of Elementary Political Powers.
• Chapter XXI.: Of Elementary Political Powers— Subject Continued.
• Chapter XXII.: Plan of the Political Code.
• Chapter XXIII.: Plan of the International Code.
• Chapter XXIV.: Plan of the Maritime Code.
• Chapter XXV.: Plan of the Military Code.
• Chapter XXVI.: Plan of the Ecclesiastical Code.
• Chapter XXVII.: Plan of Remuneratory Laws.
• Chapter XXVIII.: Of Political Economy.
• Chapter XXIX.: Plan of the Financial Code.
• Chapter XXX.: Plan of Procedure Code.
• Chapter XXXI.: Of the Integrality of the Code of Laws.
• Chapter XXXII.: Of Purity In the Composition of a Code of Laws.
• Chapter XXXIII.: Of the Style of the Laws.
• Chapter XXXIV.: Of the Interpretation, Conservation, and Improvement of a Code.
• Pannomial Fragments.
• Chapter I.: General Observations.
• Chapter II.: Consideranda.
• Chapter III.: Expositions.
• Chapter IV.: Axioms.
• Nomography; Or the Art of Inditing Laws: Now First Published From the Mss. of Jeremy Bentham.
• Chapter I.: The Subject Stated.
• Chapter II.: Relations.
• Chapter III.: Proper End In View.
• Chapter IV.: Imperfections Primary.
• Chapter V.: Explanations Relative to the Imperfections of the Second Order.
• Chapter VI.: Of Remedies. *
• Chapter VII.: Of Language.
• Chapter VIII.: Of the Perfections of Which the Legislative Style Is Susceptible.
• Chapter IX.: Of Forms of Enactment.
• Appendix. Logical Arrangements, Or Instruments of Invention and Discovery
• 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
• Section I.: Purpose Explained. Jeremy Bentham to the Honest and Afflicted Among Equity Suitors.
• Section II.: Equity Suitors’ Petition For Dispatch Court. to the King’s Most Excellent Majesty, —
• Section III.: Dispatch Court Bill—some Account of It.
• Section IV.: Information Requisite From Petitioning Suitors.
• Equity Dispatch Court Bill: Being a Bill For the Institution of an Experimental Judicatory Under the Name of the Court of Dispatch, For Exemplifying In Practice the Manner In Which the Proposed Summary May Be Substituted to the So Called Regular Sy
• Editor’s Note.
• Preface.
• Preamble.
• Part I.—: Judiciary.
• Section I.: Judge Located, How.
• Section II.: Remuneration.
• Section III.: Registrar, &c.
• Section IV.: Eleemosynary Advocate.
• Section V.: Judges’, &c. Deputes.
• Section VI.: Judge’s Powers—exemptions—checks.
• Section VII.: Prehensors and Messengers.
• Section VIII.: Consignees; * Or Say, In-trust-holders.
• Section IX.: Grounds of Decision For the Dispatch Court Judge.
• Section X. ‡: Suits’ Comparative Suitableness; and Order of Cognizance.
• Section XI.: Auxiliary Judges and Accountants.
• Section XII.: Sittings, Times Of.
• Part II.—: Procedure.
• Section XIII.: Definitions. *
• Section XIV.: Examination of Solicitors.
• Section XV.: Initiatory Examination of Parties, &c.
• Section XVI.: Appropriate Intercourse, Constant and Universal, Secured.
• Section XVII.: Mutual Security For Forthcomingness of Persons and Things. ‡
• Section XVIII.: Evidence-procuring Money, How Provided.
• Section XIX.: Subsequential Evidence, How Elicited.
• Section XX.: Execution, How Performed.
• Section XXI.: Equity Court Costs, How Disposed Of.
• Section XXII.: Dispatch Court Costs, How Disposed Of.
• Section XXIII.: Eventual Retrotransference of a Suit to the Equity Court.
• Section XXIV.: Expense of the Court, How Provided For.
• Supplemental Sections:—
• Section I. Or XXV.: Bankruptcy and Insolvency.
• Section II. Or XXVI.: Henceforward Dispatch Court.
• Schedules to the Bill.
• Plan of Parliamentary Reform, In the Form of a Catechism, With Reasons For Each Article: With an Introduction, Showing the Necessity of Radical, and the Inadequacy of Moderate, Reform.
• Introduction.
• Section I.: History of the Ensuing Tract—alarming State of the Country and the Constitution.
• Section II.: Most Prominent Present Grievance, Gareisoning France.
• Section III.: Causes of the Above and All Other Mischiefs:—particular Interests Monarchical and Aristocratical, Adverse to the Universal—their Ascendency.
• Section IV.: Sole Remedy In Principle—democratic Ascendency.
• Section V.: Remedy In Detail: Radical Parliamentary Reform: Elementary Arrangements In This Edition of It—their Necessity.
• Section VI.: Differences Between This and the Original Editions of Radical Reform.
• Section VII.: Virtual Universality of Suffrage Further Considered.
• Section VIII.: Virtual Universality of Suffrage—its Undangerousness.
• Section IX.: Freedom of Suffrage Further Explained—seductive Influence—its Forms, Instruments, &c.
• Section X.: Bribery and Terrorism Compared.
• Section XI.: Purchase of Seats—in What Cases Mischievous—in What Beneficial.
• Section XII.: Secresy of Suffrage—its Importance Further Developed.
• Section XIII.: Exclusion of Placemen, &c. From the Right of Voting—mischievousness and Profligacy of the Opposite Arrangement.
• Section XIV.: Universal Constancy of Attendance—its Importance.
• Section XV.: Representatives—impermanence of Their Situation—its Importance:—objections—their Groundlessness.
• Section XVI.: Moderate Reform—its Arrangements—their Inadequacy.
• Section XVII.: Trienniality Inadequate;—annuality Necessary.
• Section XVIII.: Interests Adverse to Adequate Reform—support Given By Them to Moderate, to the Exclusion of Radical: Tories—whigs—people’s Men.
• Catechism of Parliamentary Reform; Or, Outline of a Plan of Parliamentary Reform; In the Form of Question and Answer; With Reasons to Each Article.
• Section I.: Ends to Be Aimed At On the Occasion of Parliamentary Reform.
• Section II.: Means, Conducive Towards These Ends.
• Section III.: Means—their Uses, With Reference to Their Respective Ends.
• Section IV.: Means Conducive to Aptitude In Members: I. Placemen Not to Vote, Nor to Be Seated By Election.
• Section V.: Means, &c. Continued.—ii. Placemen Seated By the King, With Speech and Motion, Without Vote.
• Section VI.: Means, &c. Continued.—iii. Elections Frequent—annual.
• Section VII.: Means, &c. Continued.—iv. Speeches Authentically and Promptly Published.
• Section VIII.: Means, &c. Continued.—v. Attendance, Punctual and General, Secured.
• Section IX.: Inconveniences Incident to Elections, and Election Judicature.
• Section X.: Election Inconveniences—means For Their Removal.
• Section XI.: Collateral Advantages, Referable to the Situations of Electors, Placemen, Lords, &c.
• A Sketch of the Various Proposals For a Constitutional Reform In the Representation of the People, Introduced Into the Parliament of Great Britain, From 1770 to 1812.
• Radical Reform Bill, With Extracts From the Reasons.
• Preliminary Explanations.
• Title of the Proposed Act.
• Preamble.
• Section 1.—: Seats and Districts.
• Section 2.—: Electors, Who.
• Section 3.—: Eligible, Who.
• Section 4.—: Election Offices.
• Section 5.: Election Apparatus.
• Section 6.—: Promulgation of Recommendations In Favour of Proposed Members.
• Section 7.—: Voters’ Titles Pre-established.
• Section 8.—: Election, How.
• Section 9.: Election Districts and Polling Districts, How Marked Out.
• Section 10.—: Vote-making Habitations, How Defined.
• Section 11.—: Members’ Continuance.
• Section 12.—: Vacancies Supplied.
• Section 13.—: Security For the House Against Disturbance By Members. †
• Section 14.—: Indisposition of Speakers Obviated.
• Appendix, Including General Explanations.
• Radicalism Not Dangerous. Extracted From the Mss. of Jeremy Bentham. *
• Part I.—: Introduction.
• Section I.: Radical Reform Bill Recapitulated.
• Section II.: Persuasion of the Dangerousness of Radicalism—cause of It, and of the Vituperative Expression Given to It.
• Section III.: Terms of the Accusation,—speeches From the Throne, 16 Th July and 21 St November 1819.
• Section IV.: The Accusation In General Terms—counter-averment.
• Section V.: Plan of This Defence.
• Part II.—: Deference From the General Nature of the Case.
• Section I.: Conditions Necessary to a Man’s Embarking In Such a Design.
• Section VII.: Concurrence In Any Other Extensive Plan of Spoliation Impossible.
• Section VIII.: Concurrence of Any Constituted Authorities Impossible.
• Section IX.: Accomplishment Impossible—design Impossible.
• Section X.: The Talked-of Spunge No Proof of the Design.
• Part III.—: Defence From Experience In the Case of the United States.
• Part IV.: Defence From Particular Experience In the Case of Ireland: Years 1777 Or 1778, to 1783.
• Section I.: Analogy Between This and the Previous Case.
• Section II.: Democratic Ascendency, How Produced.
• Section III.: Fruit of Democratic Ascendency a Golden Age.
• Section IV.: Coincidence of Its Characters With Those of Radicalism.
• Section VI.: Extinction of Democratic Ascendency and Reform—restoration of Monarchico-aristocratical Ascendency, and Its Consequences.
• Conclusion.

PART I.—

JUDICIARY.

SECTION I.

JUDGE LOCATED, HOW.

Enactive.—Ratiocinative.

Art. 1. For the better administration of justice, by experiment made, for the purpose of an all-comprehensive substitution of the summary to the so-called regular mode of procedure, antecedently to the disbursements necessary for the institution of the requisite all-comprehensive system of Local Judicatories,—power* is hereby given to his Majesty for the erection of a Judicatory,† under the name of the Court of Dispatch, or say the Dispatch Court.

Enactive.

Art. 2. Single-seated, as in the Court of the Lord High Chancellor, will be the Dispatch Court.

Art. 3. Instrument of location, a Commission, signed by his Majesty, and countersigned by the President of his Majesty’s Privy Council, or by the Keeper of his Majesty’s Privy Seal, or by one of his Majesty’s Principal Secretaries of State, in pursuance of an election made as per articles 10, 11, and 12, by parties to the several suits‡ intended to be thus disposed of. Form of Commission as per schedule to this Act annexed, No. I.

Enactive.—Expositive.

Art. 4. Suits of which the Judge will take cognizance, these:∥ Of the suits depending in the Equity side of the Court of Chancery, and the suits depending in the Equity side of the Court of Exchequer,—every one, in respect of which, on the part of any party thereunto, the desire of such transference§ shall have been manifested by an appropriate petition, authenticated by his signature. Form of each, as per schedule No. II. Name thereof, a Dispatch-Court-praying Petition.

Enactive.—Instructional.

Art. 5. Of a printed copy of the matter of that same No. of the Schedule will such Petition be composed. But in addition to the letter-press will be inserted in manuscript the matters following:—

i. At the head of the letter-press—

1. Name of the suit, of which the removal and transference prayed for is desired.

2. Names of the several persons mentioned in the course of the documentary papers belonging to the suit, as parties in and to that same suit; or of such of them as are known by the petitioner or petitioners so to be.

ii. At the close of the letter-press—

3. Names of the party or parties whose desire is thus expressed: attested, and thus authenticated, by their respective signatures.

Art. 6. Of a Dispatch-Court-praying Petition thus delivered in, two copies at the least, both provided with the same signatuae or signatures, will be produced to the Clerk to whom the function of receiving them is committed.

On that one which is kept in the office, he will write, at the top of the first page, a numerical figure or figures, expressive of the rank occupied in the order of priority by that same Petition, in the list of the Dispatch-Court-praying Petitions, in that same office already received: and at the close of the form, immediately below the name or names of the petitioner or petitioners, his own names, personal and official, with the word received; and the year, month, and day of the month, when received.

To the individual by whom the two copies were brought, he will return the other, after having marked thereon the same number as that marked as above, on the copy retained; and, having moreover copied thereon his own acknowledgment, written as just mentioned.

Art. 7. Fee to the Clerk [1s.] On receipt of a fee to that same amount, he will moreover deliver a like copy to every other party to the suit, by whom, by word of mouth, or in writing, with his name in his own handwriting thereto added, demand thereof shall have been made.

Expositive.

Art. 8. Unanimous the Petition will be styled, if of all the persons of whom, as above, it is stated that they are parties to the suit, the names appear as expressed by their respective signatures:—an ex-parte Petition, if of the names so to be signed, any one be wanting.

Instructional.

Art. 9. In relation to any such ex-parte Petition, arrangements will, in manner hereinafter mentioned, be taken, for causing it to be known, whether the same is to be considered as unanimously assented to, or by any and what number of the parties dissented from. But, from the mere absence of the name of a party, no such conclusion can justly be drawn, as that of his being dissentient in relation to it. For putting a negative on such conclusion, any one of a variety of accidents may suffice. The party in question absent, for example, in another hemisphere—or in a state of infancy—or his relation to the business that of a trustee, without any real interest in the event or matter of the suit.

Enactive.

Art. 10. So soon as Dispatch-Court-praying Petitions, in suits to the number of [100], have been delivered in, notice thereof, under the care of a Secretary of State, will be published in the London Gazette, appointing time and place for the meeting of the Petitioners, for the purpose of making election of a Dispatch-Court Judge.

Ratiocinative.

Art. 10.* The Judge of the Dispatch Court, why thus located? that is to say, not as are Judges at large, by commission from his Majesty directly, but by election first made by the parties interested, and then by his said Majesty approved and confirmed, (Art. 13.)?

Answer.—Reasons:—

i. As to election, by the parties interested, to a situation conferring the judicial function, in principle this course is already by statute law established: to wit, by the statute 9 and 10 W. III. c. 15, by which individuals, named by the parties to a dispute relative to a matter of right, are authorized, under the name of arbitrators, to hear and determine demands, and under the name of awards to pronounce judgments, to which force of law is commanded to be given by the Judges of the ordinary courts.

ii. As much as, in the way of judicature, is in that case authorized to be done, is authorized to be done without any special appointment made by the King for the time being. But, to the present purpose, what is moreover necessary is—that, by the Judge in question, various judicial powers, not given to the functionaries so elected by the parties, should be possessed, in the conferring of which no person other than the King is competent. In particular, powers for compelling evidence at the hands of third persons as well as parties.

iii. The ultimately-proposed new judicial establishment, and the here-proposed experimental institution taken together, being, in so far as favourable to the interests of the rest of the community, unavoidably more or less unfavourable to the particular interests of men of law, taken in a body; and the preposessions and inclinations of that body being by the universally-prevalent principle of human nature rendered necessarily adverse to any such change,—the consequence is, that, for a situation such as that in question, recommendation could not, consistently with an adequate sense of the irresistible force of that same principle of human action, be expected to be received through the ordinary channels, by any other person than one whose endeavour would be naturally to bring into discredit, and, by all other safely practicable means, frustrate both institutions, rather than to render them productive of the benefit intended by this Act.

iv. At any rate, whether, of an individual so recommended, this were or were not in fact the disposition,—such it could not fail to be suspected of being by all persons, by whom, by attentive reflection, an adequate conception of the springs by which human action is regulated has been obtained.

v. On the part of the proposed electors—that is to say, all suitors in the Equity Courts in question, those suitors excepted, whose interest, and thence their endeavour, is—to profit by the imperfections of the existing system,—and who accordingly stand designated by the appellation of malâ fide suitors,—the existence of a sincere and anxious desire to see invested with the powers in question whatsoever person would be most likely to give to these same powers that exercise, by which the benefit of this Act will in the highest degree be produced,—is by those same principles of human nature, in proportion as the tendency of these same powers is perceived by them, rendered altogether secure.

Enactive.

Art. 11. Mode of election, ballot. Returning Officer by whom the business will be conducted, the said Secretary of State, or an Under-Secretary belonging to his office. To him all persons desirous of being considered as candidates will have given in their names. Business other than that of ascertaining the individual on whom the choice has fallen, none: candidates excepted, spectators at large, as in a court of justice, will not be present: speeches will not be made. Between candidates, two or more, in case of equality in the number of the votes, lot will determine.

Ratiocinative.

Art. 11.* The election, why by ballot? that is to say, not in that customary mode, in which it is known to all persons interested in which way each person gives his vote, but in a mode in which, the suffrage being given in secret, no such knowledge can to a certainty be obtained by anybody?

Answer.—Reasons:—

i. Lest, by fear, the electors in any number might be induced to give their votes in favour of a candidate in any degree, by want of aptitude in whatever shape, moral or intellectual, rendered likely to frustrate, as above, the design of these institutions, rather than to promote it.

ii. Of the transfer hereby indented to be made, the effect would be, pro tanto, to take business out of the hands of the several high judicial functionaries here following:—1. The three superior Judges of the Chancery Equity Court; 2. The eleven subordinate Judges of that same court, the Masters in Chancery; 3. The four superior Judges of the Equity side of the Exchequer Court; 4. The subordinate Judges analogous to the Masters in the Chancery Court. Moreover, among the members of the Bar, all those whose practice has for its theatre any one or more of those several judicatories: and among these are always some, by whom influential situations are occupied in Parliament.

iii. On the part of all these so highly-influential persons, unless constituted in a manner different from that of the whole remainder of the human species—a sure object of endeavour, if supported by an adequate strength of hope, would be, as above, to cause to be elected of all the several candidates, the one in the lowest degree apt, or, if there be a difference, in the highest degree unapt. For this purpose, two sorts of characters would stand open to choice:—1. A strong-minded man, whose strength in all shapes would be employed in the endeavour to frustrate the design, preserving all the while, by plausible pretexts and appearances, such as the existing system would be found to furnish in abundance, his own repute from deterioriation; 2. A weak-minded man, by whose weakness, even though unaccompanied by sinister intention the arrangements furnished by this experimental institution might be prevented from being followed by those good effects, of which, in apt hands, it would be productive.

iv. In case of failure of the whole design, every suitor concurring in the business of petitioning would be lying, and would see himself to be lying, at the mercy of all these irresistible adversaries, and unpunishable natural and probable oppressors, whose vengeance, by the war thus made upon their personal interests and affections, he had thus provoked.

v. Note, that in different degrees formidable would be this resentment in the two cases of an unanimously signed and an ex-parte signed Petition. By an unanimously signed petition, it might happen that one party would not be more exposed than another: on which supposition, injustice to one, for the sake of undue favour to another—or vice versâ, undue favour to one for the sake of injustice to another,—would not perhaps be an object of apprehension. But, in a case in which the Petition having been concurred in by one or more, had, by non-concurrence, or in a more conspicuous way by active and open opposition, been opposed by parties one or more,—the situation of a petitioner could not but present itself to his view as truly perilous. Whatsoever candidate, known, or supposed, to possess in his favour the good wishes of these tremendous personages sitting in clouded majesty, might, how inapt soever, in the conception of the elector, or in reality, or in both, be the only one in whose favour it might seem to the elector consistent with prudence to bestow his vote.

vi. In the case of a suit, in which, for increase of delay, expense, and vexation, to a suitor or suitors on the opposite side, either the demand had been made, or the defence made,—the suit having, on the one side or the other, for its commencement or continuance, the dishonesty of a malâ fide suitor,—he, who of course could not, without acting in contrariety to his own designs, be of the number of the Petitioners,—he would of course be, and be seen to be, the object of favour to those influential personages, and the Petitioners objects of corresponding resentment, and accordingly exposed to corresponding danger.

vii. Even in the case of a Petition, which being signed by every party, wore thus, upon the face of it, the appearance of a unanimous one,—a state of things which, in instances in any number, might happen to be exemplified, is this: By apprehension of disrepute, or evil in some other shape, parties, one or more, may have been induced to give their signatures: at the same time, from the nature of the interest they have in the suit, on their part nothing but unwillingness has had place; on the other side, all the willingness: and, in this state of secret unwillingness, supposing their signatures added to the rest, would be the minds of all malâ fide suitors.

Enactive.—Instructional.

Art. 12. Instrument, by the exhibition of which to the returning officer, the title to vote will be established, a Petition as per art. 5; attested as per art. 6. Entitled to give a vote will be—not each person by whom the Petition has been signed, but that person, Petitioner or Non-petitioner, to whom, for this purpose, the Petition has been entrusted.

Art. 13. The candidate on whom the choice has fallen having been ascertained, and a Record of the proceedings as per schedule No. III. drawn up, the Secretary of State will forthwith present the same to his Majesty for approbation. If the choice be approved, his Majesty will attach to the said record the word approved, followed by his sign-manual, and countersigned by the said Secretary of State: if not approved, his Majesty will, instead of the word approved, write the words not approved: in both cases, followed will be the signature by the mention of the year, month, and day of the month. And in case of disapproval, on that same day, in and by a London Gazette Extraordinary, notice of such disapproval being made public, notice for a fresh election to be made, as per art. 11 and 12, will be given, the day not being further distant than that se’nnight.

Art. 14. Should the candidate, on whom, on the occasion of such second election, the choice had fallen, fail of receiving approbation and confirmation as above, a third election will have place in the same manner as the second: and so, toties quoties, until some candidate shall have received approbation and confirmation from his Majesty, as above.

Art. 15. Should the time appointed, as per art. 13, for a fresh election, have elapsed, and neither approval nor disapproval, as above, been manifested, the Petitioners will reiterate their Petitions, until an election having taken place, shall have received confirmation as above.

Art. 16. At the same time and place at which his Majesty’s approval of an elected candidate is, as per art. 13, signified, a Commission from his Majesty, as per schedule No. I., constituting the person so approved Judge of the Dispatch Court, will in like manner be signed by his Majesty, and countersigned by the said President of the Privy Council, Keeper of the Privy Seal, or Secretary of State, (art. 3.)

Enactive.

Art. 17. For falsehood—relevant and material falsehood—inserted in the matter of such Petition, every person knowingly concerned therein, will be punishable: punishable by fine and imprisonment, one or both, at option; and as to quality, at discretion: the imprisonment not to exceed [three] years.

Expositive.

Art. 18. Criminal the offence will be, if accompanied with evil consciousness; culpable if committed through rashness, temerity, or say inattention: want of that due attention, by which, if bestowed, the commission of the offence would have been prevented; and, which of the two cases the offence belongs to, declaration will, on the occasion of the sentence, be made by the Judge.

Exemplificative.

Art. 19. Follows here an example of a falsehood, for which, in case of impunity, an adequate and determining motive might be found. For causing a Petition to appear, and to be regarded, as unanimous, stating as complete an incomplete list of the parties to the suit.

Enactive.

Art. 20. For forgery wilfully committed in relation to any such Petition, every person, knowingly and wilfully concerned therein, will be punishable by fine, imprisonment, and transportation; any one, or two, or all three, of these same punishments, at option: the imprisonment for not more than [three] years; the transportation for not more than [seven;] the fine at discretion.

Ratiocinative.

Art. 20*. Supposing the acts prohibited in and by articles 17 and 20 to remain unpunishable, persons not entitled to vote in the election might, in any number, intrude themselves; the whole business be thus involved in confusion; and the design of the institution frustrated,—by persons whose particular and sinister interests stand opposed to it. As it is, small indeed seems the probability that these penal enactments will, any of the three, be ever called into action. But, as in other cases so in this; by the efficiency of a security when employed, no reason is afforded why it should be left unemployed.*

SECTION II.

REMUNERATION.

Enactive.

Art. 1. Attached to this office will be a salary of [NA] a-year: payable at the same time, and in the same manner, as that of the Lord Chief Justice of the King’s Bench.

Expositive.—Ratiocinative.

Art. 1*.—i. As to quantity of remuneration, note here a most material difference between the case of the experimental Dispatch Court and the ultimately-proposed Local Judicatories, with a view to which, and for the sake of which, the experiment is hereby intended to be made.

ii. In the Dispatch Court, the remuneration must be upon the present high scale; namely, for the purpose of engaging men, in whom, in consideration of the extent of their practice, and the height of their reputation, the electors may be supposed to repose their confidence.

iii. In the system of Local Judicatories, no such rate of payment could be afforded; no such rate of payment could be requisite. No need (it will be seen) would there be for buying off lawyers from the highest ranks of the professional class.

iv. So much for what, by the friends to reform, would be proposed to be done. Now, as to the course that would be taken, in opposition, by corruptionists in office and in power:—as such, enemies to reform.

v. By them would be stated, as altogether indispensable, for every one of these Local Judicatories, a salary upon the present principle and scale of excess; the amount of which would of course be maximized:—from the persuasion, that from the magnitude thus alleged to be necessary, one or other of two advantages would be expected to be reaped:—1. The institution might be rejected altogether, in consideration of the insupportability of the expense: or, 2. If it were carried, there would come the profit by the patronage—a profit rising in proportion to the excess.

vi. Of the inferences deducible from the present fundamental axiom; namely, aptitude is as opulence—a rule not only acted upon, but avowed—the utmost possible advantage would of course be made. Give no more than £2000 a-year to the Judge of each Local Judicatory; a very inadequate degree of aptitude you must be contented with: give £4000 a-year, so much the better. But, to make any tolerable approach to perfection, you must give the £10,000 given at present.

Enactive.

Art. 2. Of no person, on any account, will the Judge of the Dispatch Court receive, under the name of a fee, or under any other name, any money or money’s worth, on the occasion or in consideration of any service rendered or expected to be rendered by him as such, by or in the execution of the power belonging to such his office. Acceptance of any such benefit by him, by his own or any other hand, to his use, will be deemed extortion, and as such punished. For endeavour and design respectively, punishment correspondent.

Ratiocinative.

Art. 2*. Receipt of fees, why inhibited to the Judge?

Answer.—Reasons:—

i. In the case of a Judge, as in that of every other functionary, and every human being, good behaviour depends on the conformity of interest with duty.

ii. By this mode of remuneration, his interest would be placed in a state of irreconcilable opposition to his duty: and (as will be seen) the very design of the institution frustrated.

iii. Of such opposition, in the situation in question, as well as every other, so long as man is man, sacrifice of public duty to personal and other particular interests, as far as may be with safety, is that which, at the hands of the vast majority of persons invested with political power, is, on each occasion, the most probable result, and that on the expectation of which all arrangements should accordingly be grounded.

iv. Under the name of a fee, or any other name, to authorize a Judge to receive money, money’s worth, or benefit in any shape, on the occasion of any sort of operation performed by him, or written instrument authorized by him, is, in other words, to give him a premium, or say a bounty, on the production of expense:—a bounty, the amount of which increases with the number of those same operations performed, and those same instruments so produced by him.

v. So, to give him a fee, or other benefit proportioned to the length of any such written instrument, is—to give him a bounty on the length of every such written instrument so produced by him; and thus also a bounty upon the expense.

vi. By these arrangements, it is rendered his interest to swell to the utmost the expense of every suit to the suitor. By this interest is supplied the adequate motive; by his office, and by the power belonging to it, the adequate means; and be the effect what it may, wherever motive and means, both adequate, unite in the same person, the effect follows of course.

vii. The act of employing, in the exaction of money, or money’s worth, to an undue amount, to the power-holder’s own use, the power derived from an office, is professed to be dealt with as a crime; it is termed extortion; and is taken for the subject-matter of an inhibition, or say prohibition, backed by punishment; authorizing a Judge thus to extract it—and to permit is to authorize—is therefore to authorize extortion; to authorize that which at the same time is professed to be constituted a crime. Here, then, against inhibition on the one hand, is express permission, and thereby encouragement, on the other. Unhappily, the inhibition is, in this case, but nominal, inoperative, ineffective, illusory, falsely pretended, hypocritical: the permission—the encouragement—the inducement—is efficient, effective, and effectual.

viii. A bounty on extortion operates as a penalty on abstinence from extortion; for, a bounty on any positive act operates as a penalty on the correspondent and opposite negative act. So much for the factitious expense.

ix. By the same means by which such needless expense is produced, needless delay is moreover produced. For, to the number of judicial operations increase cannot be given without increase given to the time allotted for the performance of them: and over and above the time necessary for the letting in the known and constantly accruing sources of delay, accident will, in proportion, add to the length of such time, by giving birth to incidental, and ulterior, efficient and effective causes of that same grievance.

x. Moreover, with the length of every such written instrument, increases the length of the delay producible and produced in respect of the framing it, examining it, and making answer to it.

xi. Here, then, in addition to the penalty on abstinence from extortion, is produced by these same fees, a penalty on dispatch.

xii. Be the article what it may, if a price be set upon it, and it be delivered to those alone who pay the price, it is sold—sold to all persons to whom on payment of that price it is delivered.

xiii. Moreover, it is denied to all persons to whom it is not thus sold.

xiv. How it is, that by this mode of remuneration, delivery of justice is delayed, has been shown above, and delay of justice is of itself denial of justice, so long as it lasts.

xv. Thus it is, that by every Judge, by whom, for acting as such, a fee is demanded, justice is, on the occasion of each demand, either sold or denied: sold, if the money be received; denied, if it be not received.

xvi. Between the number of those to whom justice is sold, and the number of those to whom it is denied, the proportion will of course in each suit be rendered greater or less by the amount of the aggregate of the fees so demanded on the occasion of that same suit.

xvii. The sort of suits which are here in question, are those of which the Equity Courts take cognizance. Of the proportion between the number of those persons to whom by the fees thus demanded it is sold, and the number of those to whom it is utterly denied, the stock of data as yet accessible, affords not any tolerably correct means of forming an estimate; that the number of those to whom it is utterly denied, is several thousand times as great as the number of those to whom it is sold, may, however, be asserted without much fear of error.

xviii. Be the article what it may, if the possession of it would be more useful to a man than the money, the denial of it to him is productive of greater suffering to him, and a worse injury to him, than the sale would be: those, therefore, to whom what is called justice is sold, are, if it be justice, the favoured few.

xix. All this while, of the aggregate of the evil produced by fees allowed to be taken by a Judge to his own use, no more than a small part is it that is ever presented to view by the words which give expression to it in the law: for, by the Judge, no operation is performed without being accompanied with correspondent operations performed by other persons, in whose instance remuneration is no less necessary than in the instance of the Judge. Thus it is, that for the purpose, and with the effect of producing a comparatively small quantity of enjoyment to one man in the situation of Judge, suffering in vast and immeasurable quantity is produced on the part of a vast and immeasurable multitude of other persons in the condition of suitors.

xx. Of a law requiring fees to be paid to Judges, thus maleficent would be the effect, even if the aggregate amount of those fees could be and were fixed or limited—limited by the law itself, in such a manner as not to be capable of being by any act of the Judge, or any person other than those appointed by the legislature, made to receive increase beyond that limit.

xxi. But this is what never has been the state of things, nor ever can be. Of the sorts of occasions on which, in the sorts of suits in question, the fee is allowed to be taken, the number may be limited: so of the sorts of operations on those several occasions performed, and of the sorts of written instruments* on those several occasions issued. But in the instance of an individual suit of any sort individually taken, for the legislator to apply limitation to the number of the operations, or the instruments, or to the length of any instrument, unless where it is prescribed in terminis, is not possible. Do the legislator what he will, to quantities it will remain in the power of the Judge to make his own additions.

xxii. Fixation, limitation, regulation of fees allowed to be taken by Judges and their subordinates (not to speak of functionaries in other departments)—all these are but so many covert modes of giving maximization to the quantity of money exigible by them, and thereby to the quantity of extortion practised, and corruption kept infused, by force of law.

xxiii. What if a statute were passed, establishing a pecuniary qualification for enabling a man to apply for justice to an Equity Court, and the like for enabling him to defend himself against any application so made?—say a hundred a-year in a certain shape, as in the case of the qualification of a Justice of the Peace, or three hundred a-year, as in the case of a Member of Parliament? What an outcry would not such a law raise? This would be, in other words, establishing a prohibition, or say inhibition, inhibiting every man not so qualified from making any such application, or any such defence.

xxiv. Men govern others—men suffer others to govern them—by signs, without looking further—without looking to things signified. Many times the qualification sufficient to enable a man to act as Justice of Peace would not suffice to enable a man to make a well-grounded application to an Equity Court for what it deals out under the name of justice, or to defend himself against an utterly groundless and unjust one. Not it, indeed. Here then is prohibition put upon application for justice, and upon self-defence against injustice.

xxv. Thus would gnats be strained at by those by whom camels are swallowed. Much more effective is this virtual and undeclared prohibition, than would be even a prohibition operating by a declared penalty to the same amount: for by the virtual prohibition, the penal effect is made to take place, without the uncertainty of success, and the certainty of that expense, delay, and vexation, whatsoever it be, which have place as often as effect is endeavoured to be given to a declared penalty.

xxvi. So in the case of the correspondent remuneration. In the actual state of things, the manufacturer of the expense and delay, who pays himself for what he himself does, has nobody but himself to apply to, in order to obtain that which he so makes: in the case of a declaredly remunerating law, he would have to make application to others—that same application, loaded with the uncertainty as to success, and in case of contestation, the certainty as to delay, expense, and vexation, as in the case of the probibitory and penal law, as above.

xxvii. Taking money, or money’s worth, in remuneration for operations performed by a Judge, on the occasion and by the means of exercise given by him to the powers of his office, is, for shortness, termed selling justice; it is the same thing in other words.

xxviii. Indefinitely numerous are the forms of words, by which, in the hands of the legislator, the effects of bounty and penalty—thence of production and prevention—are capable of being produced:—a form more effective than the above the language does not furnish. With as much reason might it be said, that when the legislator imposes a tax, he does not mean it should be paid, as that when he allows fees to be taken by a Judge, he does not intend that extortion, corruption, factitious expense, and factitious delay—all to a boundless amount, with the correspondent suffering, should have place.*

xxix. To authorize a Judge to exact, in this manner, to an amount thus unlimited, for his own remuneration, is to authorize him to impose taxes to the same unlimited amount, and put the proceeds into his own pocket.

xxx. Not less defensible would be a law authorizing the head of the army to pay himself what he pleased for so being, than is that state of the law, by which the head of the law is authorized so to do.

xxxi. The head of the army would not choose among those who are already in a state of impoverishment and affliction, those on whom he would levy his contributions; the head of the law does make this cruel choice.

xxxii. Were the head of the army to take, in that way, £10,000 a-year for himself, he would not take more than £10,000 from those on whom he levied the money. The head of the law, who takes £10,000 a-year for himself in the way of fees, does take (as above) a vast many times as much as £10,000 from those on whom he levies such his money.†

xxxiii. A tax so called is (generally speaking) a tax upon prosperity: a tax upon the injured suitor, or upon the injured man, who would have been suitor, but who for want of money cannot pay the tax, is a tax upon adversity.

xxxiv. The legislator who imposes taxes on litis-contestation, under the name of taxes, establishes a cruel grievance: the legislator who imposes taxes under the name of fees, establishes a still more cruel grievance. His parallel is only to be found in the surgeon who should drag a patient out of a sick-bed when suffering under gout, rheumatism, or stone, and flog him for the purpose of obtaining payment for dressing his sores.

xxxv. All this, notwithstanding the practice of employing this mode of remuneration in the case of Judges in general, and thereby in the case of an Equity Court Judge in particular, has been defended and recommended for continuance: sole ground of defence, the exertion of which this mode of remuneration is alleged to be productive. Answers to this allegation, these:—

xxxvi.—1. The alleged advantage, supposing it reaped, would be reaped by these persons alone, to whom by the judges so remunerated, what is administered under the name of justice is, as above, sold: it would not be reaped by any of those to whom that same boon is utterly denied; and these, it has been seen, are hundreds of times or thousands of times as numerous as those. Here, then, is the most favourite supposition; here, then, is an advantage which is not worth a hundredth or a thousandth part of the price paid for it. Lawyers, in all they say—in all they write—assume justice to be accessible—universally accessible: whereas inaccessibility is the rule, accessibility only the exception.

xxxvii.—2. But in no one instance can the extra-exertion in question be in any degree actually produced by any such fee; nor, consequently, the supposed advantage reaped. If the extra-exertion were made, the occasions on which it was made, would be those on which the Judge is occupied in hearing vivâ voce pleadings, or hearing or reading papers belonging to the suit; and on those same occasions, to be productive of that effect, it would be necessary that with the degree of the exertion, the amount of the fee, or the probability of the Judge receiving it, should receive increase. But on no such occasion has any such increase of remuneration in any instance been so received by him: nor can it be—the operations he receives his fee for, are operations performed by other persons. What is more—in no instance, by the alleged cause—namely, the receipt of the fee—can the alleged effect—namely, the extra-exertion—be produced; for, to be produced, it would be necessary that the exertion should increase with the fee, which is impossible.

xxxviii.—3. That which is thus impossible to be done by means of the instrument, the use of which is thus recommended, may be done to a certainty by other means: by other means which require no extra cost. It is produced in so far as on his part assiduity is produced, and publicity, as to that which after hearing and seeing what is proper, he says or writes, has place. The greater the respectability and the number of the persons to whose minds he expects that what he thus utters will be applied, the stronger will be his exertion to save himself from that disapprobation which will attach itself to his conduct in proportion as it is blameworthy, and to obtain that approbation which will attach itself to his conduct in proportion as it is praise worthy.

xxxix. Conclusion, as above announced,—by the allowance of fees to the Judge, the design of the Dispatch Court would in a proportionable degree be frustrated.*

Enactive.

Art. 3. To every subordinate of the Judge applies art. 2, as well as to the Judge himself.

Ratiocinative.

Art. 3*. Receipt of fees, why interdicted to all subordinate judicial officers?

Answer.—Reasons:—

i. Because, were not this same extent given to the interdiction in this case, the interdiction to the Judge would be without effect.

ii. These several functionaries, in their several situations, being so many instruments in the hand of the Judge—instruments, without which it would not be in his power to produce the effects for the production of which he is located,—it is matter of necessity, that upon his will should depend their existence in their several situations. That by the Judge each such subordinate should, in case of inaptitude sufficiently proved, be dislocable, and accordingly dislocated, is therefore matter of necessity.

iii. And that on each vacancy, the new functionary should, by the Judge in being, be located, is desirable; he having an interest greater than any other individual has in the making of an apt choice.

iv. But, by every fee received by any such subordinate of his, the effect produced on the mind of the Judge is in kind the same as if received by himself to his own use. The relation which in this case has place between the situation of the Judge and that of the subordinate, is that which has place between locator and locatee; in ecclesiastical language, between patron and incumbent; in familiar language, between patron and protegé:—as the value of the subordinate situation increases and diminishes, so does that of the superordinate.

v. On the mind of the Judge, not only is the effect producible by the fee received by his subordinate the same in kind as if received by himself, but it may be so even in degree: and this, in the case of each one of a number of these subordinate offices and officers.

vi. Or even greater: as in the case in which the location is not in the way of sale, but in that of gift—and thus in outward show gratuitous, and to the locator unprofitable. For, suppose the Judge to have a son, to whom, out of his own money, he was about to make over an allowance of £500 a-year for his life: and a vacancy happening, in an office in the father’s gift, to which is attached a mass of emolument to that same amount, the Judge gives to his son this office, and thereby saves to himself the expenditure of this same part of his own income. In this case the patronage is worth even more than the incumbency: for, in the money-market phrase, the life of the son is of course worth more than the life of the father: it may be worth several times as much.

vii. But what, under the fee-gathering system, may happen but too easily, is—that so great may be the number and value of the subordinate offices in the gift of one and the same patron, that, in comparison with the value of the patronage attached to it, the value of the remuneration attached to the superordinate office may be in any degree inferior.

viii. Be the business what it may, in so far as relish for it is a cause of aptitude for it, purchase by the locatee is presumptive proof of his aptitude; the greater the price, the stronger the presumption:—and so, on the other hand, of inaptitude,—comparative at least, in comparison with purchase,—is the presumption afforded by acceptance from gift. Be the purchaser’s aversion to the business ever so strong, and his inaptitude ever so flagrant, if pay is attached to it, a man who has no other means of subsistence, office and pay together, will accept of it rather than starve. Rather than starve, the most arrant coward would accept gladly not only the commission of a military officer, but even the situation of a private; while, had he any other means of subsistence, not a penny for it would he give.*

Enactive.—Expositive.

Art. 4. Correspondent to the length of the Judge’s term of service, will of course, in respect of duration, be the value of his remuneration. Whatever be the limit prescribed to the duration of this Act, the same will, in course, be prescribed to the continuance of the Judge in this his office, and thence to that of his salary. For the duration given to this Act, see below.

Ratiocinative.

Art. 4*. The institution—why thus made temporary?—Answer: That it may be seen that only in the event of its affording assurance of preponderant benefit, will the community be burthened with it, and the established course of regular procedure be subjected to that interruption and disturbance, which, after all endeavours used to minimize it, cannot but in some degree have place.

Enactive.—Instructional.

Art. 5. Should this act not receive continuation, it will be for the consideration of Parliament whether to grant to the Judge of the Dispatch Court and his subordinates, any and what pensions of retreat.

Ratiocinative.

Art. 5*. Of the office of the Judge, with the remuneration annexed, the duration, why thus made temporary, and no pension of retreat secured?

Answer.—Reasons:—

i. Because by this means the force of the motives to exertion and manifestation of appropriate aptitude in all its branches, in so far as depends upon the will, is maximized. Were a pension of retreat made secure to him, the exertion of the Judge might slacken, if in his natural disposition indolence, or a preference for other occupation, had place.

ii. True it is, that if, by the uncertainty thus attached to the continuance of the remuneration, an individual more apt than any other who could be found were deterred from the acceptance of the office, here would be a bad effect to set against the good produced by the saving in expense. But, no such undesirable consequence seems likely to have place. So manifest, and in case of success so vast, will be the service done to the community in respect of justice, that, on the supposition, though it were but a moderate degree of appropriate aptitude on the part of the benemeritant functionary (moral aptitude in the shape of sincerity included,) to any individual desirous of the situation, and feeling himself competent to it, the continuance and perpetuation of the institution could scarcely fail to present itself as indubitable. Families in such number rescued from absolute ruin! families so high in rank and opulence delivered from vexation and embarrassment! so quick the succession of the benefits thus conferred! scarce a day past without his beholding a fresh group of fortunate beings, beholding in him the author of their salvation! To crown the whole, the institution of the all-comprehensive and all-beneficent system of Local Judicatories, secured, and he the main instrument in the establishment of it! Considerations these, by which will naturally be inspired a degree of animation, much beyond any that could reasonably be looked for, in the situation of a Judge, serving with the same quantum of remuneration in the ordinary course of judicial service.

SECTION III.

REGISTRAR, &c.

Enactive.

Art. 1. Officiating under the judge of the Dispatch Court, will be a Registrar thereof.

Enactive.—Instructional.

Art. 2. Functions of the Registrar these:—i. To enter, or cause to be entered, on record—in proportion as they have place—all the several proceedings carried on in the Judicatory: to wit, whether in the Justice Chamber in which the Judge holds his sittings, or in any office or offices thereto belonging: under the name of proceedings being included all judicial operations at large, and operations, consisting—1. In the penning, subject to the direction of the Judge, written instruments destined to remain in the office; 2. In the issuing all such as are destined to be issued therefrom; and, 3. In the receiving all such as are thereinto delivered: instruments of all sorts constitutive of documentary evidence included.

Art. 3.—ii. To enter, or cause to be entered—in the very words in which they have been expressed—minutes of all portions of the matter of discourse, which, being relevant and material with relation to the proceedings of the Judicatory, have been uttered during any sitting of the Judge, by any person, of any description whatsoever, therein present: whether functionary, party, party’s assistant, extraneous witness, or individual at large.

Art. 4.—iii. To keep in his custody the originals of all such instruments and minutes, and all such copies thereof, as the nature of the service shall require to be kept.

Art. 5.—iv. To enter memorandums of all such material circumstances as have taken place, in, or in relation to, the Justice Chamber, during the sitting of the Judge; or in, or in relation to, any office or offices belonging to the Judicatory.

Art. 6.—v. Under the direction of the Judge, day by day, with all practicable regularity and dispatch, to cause to be printed and published, for the information of the public in general, the minutes of each day’s proceedings.

Art. 7.—vi. Subject to the directions of the Judge, to frame, and by his signature authenticate, all instruments, whether stationary or missive, expressive of the mandates of the Judge.

Art. 8.—vii. To give execution and effect to all mandates of the Judge, uttered for the purpose of causing to be fitted for, and applied to, their respective uses, any of the several instruments, or other documents, issued from, written in, or delivered into, the Registrar’s official chamber, or say office; and to preserve and keep in order, all such as are designed to be therein preserved.

Ratiocinative.

Art. 8*. To all the several portions of discourse uttered, and material occurrences taking place, why give permanence and publicity as above?

Answer.—Reasons:—

i. That the portions of discourse, and minutes of occurrences, may at all times be forthcoming, and in readiness to be applied to their several and respective uses.

ii. That, considering the magnitude and importance of the powers unavoidably entrusted to the Judge, provision the more effectual may thereby be made, for his eventual responsibility, in respect of the exercise given to these same powers.

Enactive.

Art. 9. Salary of the Registrar, [£ NA] a-year: payable in the same manner as, per Section II, the salary of the Judge.

Art. 10. Officiating under the Judge of the Dispatch Court and the Registrar thereof, will be a Short-hand Writer. His function, the minuting down in short-hand all the several material discourses, in art. 2, 3, and 5, mentioned; in short-hand rather than in ordinary hand, for the purpose of the saving thus made in time.

Art. 11. Salary, [£ NA] a-year: payable in the same manner as the salary of the Judge.

Art. 12. Officiating under the Judge and the Registrar will be Clerks, in such number as, in and by the joint certificate of these their superordinate, shall have been certified to be necessary for the adequate dispatch of the business of the judicatory. Of this certificate, entry will be made in the books of the Registrar’s office; and, an examplar thereof being transmitted to the office of his Majesty’s Treasury, provision under the head of Contingencies belonging to the Dispatch Court, will accordingly be made, of the salaries respectively allotted to these same functionaries.

Art. 13. Located by the Judge,—and, by him, at all times, for reasons assigned, dislocable or suspendible,—will be the Registrar of the Dispatch Court.

Art. 14. Located by the Registrar,—and, by him, at all times, for reasons assigned, dislocable or suspendible,—will he the Shorthand Writer of the Dispatch Court.

Art. 15. Located by the Registrar,—and, by him, at all times, for reasons assigned, dislocable or suspensible,—will be the several Clerks of the Dispatch Court.

SECTION IV.

ELEEMOSYNARY ADVOCATE.

Enactive.

Art. 1. Among the arrangements appertaining to the proposed system of Local Judicatories, an effectual one being the institution of an Eleemosynary Advocate,—provision for the securing of appropriate aptitude, on the part of functionaries eventually located in that office, will herein be made, in manner hereinafter following:—

Expositive.

Art. 2. By an Eleemosynary Advocate, understand—a functionary whose office consists in the rendering gratuitous assistance to a party on either side of the suit, who, by relative indigence, is rendered unable to afford the remuneration requisite to the obtainment of professional assistance.

Art. 3. Authorized hereby is every Barrister, whether of the English or the Irish Bar, to act as Eleemosynary Advocate, on either side of a suit, in the Dispatch Court.

Enactive.

Art. 4. Remuneration, in possession, in the shape of salary, or, in any other shape at the public expense, any more than at private expense, not any:—remuneration in expectancy will be the situation of Eleemosynary Advocate, with a salary, in one or other of the proposed Local Judicatories.

Ratiocinative.

Art. 4*. In the Dispatch Court, why no such situation as that of an Eleemosynary Advocate filled exclusively by a determinate individual, with or without a salary?

Answer.—Reasons:—

i. In the instance of this situation, no place has that demand for remuneration, which has been seen to have place, as per Section II, in the instance of that of the Judge. No sacrifice at all, by officiating in the character of Eleemosynary Advocate in the Dispatch Court, will a Barrister, who as yet has no considerable practice as such, have to make.

ii. If a salary were provided,—by no more than one person, or at most some other very small number of persons, could the situation be occupied—the functions exercised. No salary being provided,—the exercise of the function may, without inconvenience, be left open to as many as shall feel disposed to undertake it.

iii. The greater the number of those by whom this function is exercised, the greater the number out of which those to whom it belongs will have to choose, if and when the time comes for the filling the situation of Eleemosynary Advocate in the several proposed Local Judicatories.

iv. Note, that, of these Local Judicatories, there will require to be, at the least, nearer three than two hundred.

v. As to fear of any deficiency, in the desirable number, whatever it be, of persons ready and willing to give this exemplification of their aptitude for the fulfilment of the duty attached to this office,—no ground assuredly can there be for any such apprehension. Whatever manifestation a man makes of his aptitude for the exercise of this function on gratuitous terms, the same will he make of his aptitude for the exercise of this same function on the ordinary terms; and, upon these gratuitous terms, the faculty of exercising it will thus lie open to men, by dozens and by scores, by whom the faculty of exercising it on the ordinary terms would not have been attained.

vi. Analogous to the gratuitous practice of medical men in hospitals, will be that of juridical assistants of parties in the Dispatch Court. Strenuous, on every occasion, is well known to be the competition for the situation of physician or surgeon to a public hospital. Yet, in the view of no person other than colleagues and patients, does a medical man practise in a hospital: whereas in the view of the whole public will a candidate, as above, for the situation of Eleemosynary Advocate, give exemplification of his appropriate aptitude in the Dispatch Court.

vii. By the universality of the liberty thus given to all Barristers to practice in the capacity of Eleemosynary Advocates, that demand which will be seen to have place for Deputes, in the case of the Judge, the Registrar, and other Dispatch Court functionaries, will be seen to stand excluded.

viii. The greater the number of Barristers practising in the Dispatch Court, as above, in the character of Eleemosynary Advocates,—each in expectation of the situation of Eleemosynary Advocate in one of the Local Judicatories,—the greater the number of those who, by personal interest as well as affection, will stand engaged—they and their respective connexions—to lend such support as may be in their power, to the proposed measures for the institution of the system of Local Judicatories.

SECTION V.

JUDGES’, &c. DEPUTES.

Enactive.

Art. 1. To obviate delay and failure of justice, the Judge will, within [NA] days after the day of his location, locate a Depute. By this substitute his seat will be occupied, at all times during which the Judge, his principal, is taking the benefit of the vacation days (as per Section XII. Sittings, times of,) or is by sickness rendered unfit for duty.

Art. 2. Power to his Majesty, at any time within [NA] days after such location, to dislocate such locatee: power, in that case, and with obligation, to the Judge, within [NA] days after such dislocation, to locate a fresh Depute, with like power of dislocation to his Majesty, as aforesaid; and so, toties quoties, until a Depute shall have been located, of whom it shall have pleased his Majesty to approve. So likewise, toties quoties, in case of self-dislocation, or say resignation, by such Depute.

Art. 3. To the end that such substitution of the Depute to his principal may never have place without sufficient cause,—of the non-attendance of the Judge by reason of sickness, the Registrar will on that same day give information; that is to say, by a bulletin, transmitted to each of the London daily newspapers, evening or morning, whichever shall be next published; on receipt of which, the Editor of each such newspaper shall, with all practicable dispatch, give insertion thereunto.

Art. 4. On the first day of his attendance, after non-attendance by reason of sickness,—the Judge will, at the commencement of the sitting, make open declaration thereof: and, of such declaration the Registrar will forthwith make entry on the minutes of the register-book.

Art. 5. If, at any part of the Judge’s vacation time, as above, it should happen to the Judge Depute to be non-attendant by reason of sickness, as above,—like notice of such sickness, and publication thereof, shall have place, as per art. 3: and, in this case, the Judge will be in attendance instead of his Depute, unless by distance from London, such attendance is rendered impracticable.

Art. 6. Power to the Judge, at any time, to dislocate or suspend his Depute, for special cause assigned: entry thereof will thereupon be made in the minutes; and copy of the instrument of dislocation delivered to the dislocatee. Power to the Judge, in this case, and with obligation, to locate a fresh Depute: obligation on the Judge, at the same time, his vacation time notwithstanding, to attend during [NA] days after such location, for the instruction of such his new Depute.

Art. 7. Responsible in damages will be the Judge, for any wrong, to any individual or body politic, or to the public at large, by any act, positive or negative, done by his Depute.

Ratiocinative.

Art. 7*.—i. Let it not be thought, that, by this obligation, any apt and competent person will be deterred from subjecting himself to this eventual damage. To serve their respective friends or connexions,—without remuneration, received or expected,—men of all descriptions are continually seen exposing themselves to this same risk; and this—even after, and in consequence of, proof of misconduct, in some determinate shape, in some individual instance, on the part of him for whom this risk is incurred: witness all instances of binding to good behaviour, by recognizance with co-obligors.

ii. In the present instance, slight will be the risk, valuable the compensation given for it:—slight the risk; for, from among all his acquaintance will the functionary have to select the object of his choice. Valuable, on the other hand, as will be seen, the compensation attached to this risk: valuable, notwithstanding the terms on which the Depute will have to serve. See this topic further pursued, below, art. 12*.

Enactive.

Art. 8. To no pecuniary remuneration in any shape, and in particular in the shape of fees, will be entitled any Judge-Depute located under this Act.

Instructional.

Art. 9. In addition to the power and dignity naturally and inseparably attached to his office,—a remuneration he will have, in the prospect of succeeding to the office, on the death or dislocation of his principal; and, consideration had of the peculiar experience obtained by him, and the relative aptitude evidenced by him, in and by the fulfilment of his duty, in respect of such his office,—his succession thereto will, in a manner, take place of course: saving always to his Majesty, his negative, as per Sect. I. art. 13, 14, 16.

Ratiocinative.

Art. 9*. As to service without pecuniary remuneration, it has place in some thousands of instances on the part of Justices of the Peace. True it is, that, on the part of those functionaries, the service is not obligatcry; and, on the free will of each one of them depends the time, and in good measure the place, in which it is performed. On the other hand, not having, unless by corruption, any pecuniary remuneration (with the exception of the small value in the shape of patronage in respect of the fees received by a Clerk,)—they have not any pecuniary remuneration, comparable in value to that which, as above, is in expectancy in the case of the Judge-Depute: and as to the obligation of duty,—in his case it extends not, for a certainty, beyond the small quantity of vacation time allowed to the principal. As to the casual addition by his sickness, it is what may never happen: for it is what, in experience, has in many instances never happened.

Art. 10. Power to the Registrar to locate a Depute, in like manner as to the Judge, as per art. 1.

Art. 11. Power to the Registrar to dislocate, and from time to time suspend, his Depute, in like manner as to the Judge, per art. 6.

Art. 12. Responsible will be the Registrar for any wrong done by his Depute; in the same manner as is the Judge by art. 7.

Ratiocinative.

Art. 12*. Of the deputation system, applied as it is in general, and, in particular, applied as it is to the offices here in question,—namely, that of the Judge, and that of the Registrar,—but more particularly that of the Judge,—beneficial effects, these:—

i. Operating as an efficient cause of the existence of appropriate aptitude in the functionary: appropriate aptitude, that is to say, in all its branches.

ii. Affording an experimental demonstration of that same existence.

iii. Affording an indication of the degree in which, in the instance of each candidate, it has place.

iv. In case of deficiency to any amount in respect of any of these requisites,—affording facility of dislocation, with the least possible commotion on the part of the public mind, and with the least possible hurt to the feelings of the individual.

v. Produced by the deputation system as here applied, may be seen to be these so desirable effects,—all of them in conjunction, each of them in a manner and degree as yet without example.

vi. As to appropriate aptitude on the part of the Depute:—appropriate aptitude in all points taken together, and more especially moral aptitude. At each period of his service, the state of his mind in respect of this quality will depend—partly on what it was on entrance into the situation, partly on subsequentially intervening circumstances: say partly on initial, or say original,—partly on subsequential, aptitude. But, as to initial aptitude, in a prodigious degree more effective is the security afforded in this case, than that which is afforded in the ordinary mode of patronage. In the present case, responsible in a pecuniary way is the principal for the good behaviour of his depute: not so, in the ordinary case, the patron for his protegé. Mark now in both cases the consequence. In the case of the Dispatch Court,—to the Judge thereof,—that is to say, to the Judge Principal,—the aptitude of this object of his choice—of this partner of his fortune—of this his occasional proxy, cannot possibly fail to be an object of attentive examination and sincere solicitude: while, in the ordinary case of a patron, no motive whatever, capable of making any approach to the degree of force adequate to the production of any such attention, has place.

vii. The risk thus incurred, as above already alluded to (art. 7*)—is it in the nature of the case that it should have any such effect as that of preventing a fit person from giving his acceptance to the trust? Not it, indeed: for, so says continual experience. So many instances, in which, in existing practice, one man joins in security for the good behaviour of another,—so many instances in which the demonstration is afforded. But, in this case, beyond comparison stronger is the inducement than in those. In those cases, on the part of the object of the confidence reposed, delinquency already manifested is an essentially concomitant circumstance: in those same cases, to set against, and afford compensation for, the risk, no benefit in any self-regarding shape has place: frequently, nothing in addition to the simple pleasure of sympathy, or say benevolence: while, in the present case, in compensation for a so much inferior risk, comes the benefit of rich patronage—the patronage of so high an office. And thus it is, that in so far as, in consequence of the good behaviour of the Depute in such his situation, he becomes eventually elevated by the competent authority to the rank of Principal,—the patronage of this important office is virtually, and, as it were, insensibly, transferred from an essentially unapt, into an essentially apt, class of hands: from hands indiscriminately occupied in the promotion of justice and injustice, to hands exclusively occupied in the promotion of justice.

viii. So much for initial appropriate aptitude: now as to subsequential.

ix or i. As to the moral branch.* Here may be seen each functionary’s interest brought into connexion and coincidence with his duty, by the closest ties. Neither by delay nor by expense, neither by being lavish of the time nor of the money of other men, will any one of these functionaries have profit to gain in any shape; while, by the care taken to expend of both those precious articles taken together no more than the smallest quantity that, consistently with rectitude of decision, can be expended, reputation will every one of them have to gain;—reputation, which in his situation is everything.

x. or ii. As to appropriate aptitude, intellectual and active. Here, by each one of these Dispatch Court Judge Deputes, with a degree of instructiveness proportioned to the number of the suits that have passed through his hands, will be a sort of apprenticeship served, preparatory to the subsequent mastership. An apprenticeship? and in what occupation?—not (as the unknown political satirist phrases it) “in the indiscriminate defence of right and wrong,” but in the pure and undeviating pursuit and support of right.

xi. or iii. As to manifestation of the existence of this aptitude and of the degree of it,—in the Dispatch Court, in full view of the assembled public, by every one of these Deputes, will demonstration be, each day, made: each such Dispatch Court Judge Depute will be a probationer, with reference to a permanent situation in one of the contemplated Local Judicatories.

xii. or iv. For the seeking, or the acceptance, of a situation thus circumstanced, what encouragement could present itself to any man, who is not inwardly conscious of a competent degree of appropriate aptitude, in all its several shapes, as above distinguished.

xiii. or v. On the other hand, suppose the Dispatch Court out of the question, and the Local Judicatories instituted, with what promise of appropriate aptitude would they be to be filled? What proof tolerably conclusive, what proof so much as faintly presumptive, would be to be found anywhere else?

xiv. or vi. The greater the number of these Deputes, whom, without lessening through want of experience the probability of rectitude of decision, means could be found for employing in the Dispatch Court,—the greater would be the benefit produced in both situations: in the Dispatch Court, and in the Local Judicatories likewise. In the Dispatch Court, by augmentation of the number of the suits to which the relief in respect of the delay and expense would be administered; in the Local Judicatories, by augmentation of the number of the Judicatories, for which Judges, endowed with the thus demonstrated degree of appropriate aptitude, would be help up to view and presented for choice.

vii. Nor is the name Depute an invention of the present day. Besides the kindred name of Deputy, employed in so many Government offices (and to an extent so much greater than could be wished)—the institution indicated by the name Depute is, in Scotland, exemplified in the case of divers judicial officers. Witness Sheriff-Deputes:* though, of the use made of it in the present instance, no more than a comparatively small part would be found exemplified in that instance.

Art. 13. In respect of the several offices of Judge, Registrar, and Short-hand Writer, with their respective Deputes,—for forms of location, dislocation, suspension and relocation, see Schedules No. IV. to VII.

SECTION VI.

JUDGE’S POWERS—EXEMPTIONS—CHECKS.

Introductory Note.

Satisfactory it cannot but be, and that in no small degree, to any one who enters upon a subject of such importance and difficulty as that embraced in this section, to have before him a preliminary sketch of the whole of the ground on which he is about to tread, as marked out by the prime and immediate divisions of it. Uses throughout derivable from this exhibition:—Association of clear ideas with the terms employed; relations, as well of accordance as of difference, which have place between the several objects all along made distinctly visible.

1. On the present occasion, as on every other, to will the end, is to will the necessary means. By him by whom the end and the necessary means are thus willed—of those some of which are necessary, those which to him present themselves as most desirable will of course be willed and employed in preference. On the present occasion, those, whatsoever they may be, which to the community in question are deemed most beneficial and least burthensome, are those which will be endeavoured to be employed in preference to others.

2. End in view upon the present occasion: To the existing mode, or say system of judicial procedure, the utter and all-comprehensive inaptitude of which is regarded as demonstrated, namely the system styled the regular,—the substitution of the assumed completely apt summary mode or say system; that is to say, after application made to it of such ulterior powers and arrangements as the all-comprehensive extent hereby given to it will be seen to necessitate: the measure of aptitude being the degree of conduciveness to the aggregate of the ends of justice.

3. Among the means necessary will be seen to be the powers, exemptions, and checks, following: checks—that is to say, to those same powers, and to the power-conferring effect of those same exemptions.

4. In relation to the powers in question, subject-matters of consideration, with reference to that same end and those same means, the following:—

i.Persons—that is to say, sort of persons, to whom the powers in question are proposed to be given: say, power-holders,* who?

ii.Exemption-holder—that is to say, sort of persons to whom the exemptions in question are proposed to be given, who?

iii.Checks proposed to be applied to the exercise of those same powers and to the use made of those same exemptions: say, checks applied, what?†

iv.Subject-matters on, over, or in relation to which, the several powers are to be exercised: say, subject-matters of operation, what?

v. The powers requisite to be exercised, on, over, or say in relation to those same subject-matters: say, powers exercisable, what?

vi.Operators by whom, on the occasion of the exercise given to the several powers, the correspondent operations are performed: say, operators, who?

vii. Relative time of the operations by which such exercise is given to those same powers. This will be seen to be—1. in some instances, actual; 2. in other instances, eventual. Eventual only will of course be the punitive power, for whichsoever of three special purposes exercised:—namely, surmounting obstruction or resistance, or securing subsequent obedience.

viii.Purposes for which exercise will be to be given to these several powers: say, purposes, what?

ix.Occasions on which, for these several purposes respectively, exercise may come to be given or require to be given to those several powers: say, occasion, what?

5.—i. On the present occasion, sole power-holder the Dispatch Court Judge.

ii.Exemption-holders, he and the persons by whose hands he operates.

iii. Persons to whom the checks apply, those same power-holders and those same exemption-holders.

6.—iv.Subject-matters of operation:—1. things; 2. persons.

7.—i. The things in question are either—1. intrinsically valuable; or, 2. relatively valuable.

8. By things relatively-valuable, understand things which are such with relation to things infrinsically valuable. Such are all documents and other written instruments of which it may be of use to the Judge as such to have possession: principally for the purpose of determining the disposition to be made of things intrinsically valuable, and giving facility to the making of it. In the number of these same things relatively valuable, will be all those the possession of which may be necessary to the application of any of the powers here in question.

9. Things intrinsically valuable are either—1. corporeal—or 2. incorporeal, or say fictitious.

10. Things corporeal are—1. immoveable; for example, portions of land, with or without edifices thereon erected, or works therein made; 2. moveable; 3. complex—that is to say, composed of things immoveable, with or without moveables thereto belonging; and with or without things incorporeal spoken of as attached or otherwise belonging to things or persons.

11.—ii.Persons on or in relation to whom, in quality of subject-matters of operation, powers will have to be exercised, are either—1. official persons, or say judicial functionaries; or, 2. persons at large.

12. The official persons are judicial subordinates. These subordinates are either—1. those which are such with relation to the judge himself; or, 2. those which are such in relation to the judges of other courts; and in particular the Equity Courts here in question.

13.—v.Powers exercisable in relation to these same subject-matters. These are distinguishable into—1. Powers considered without reference to the application made of them; or say, powers in the abstract; 2. Powers considered with reference to and expressive of the application made of them; or say, the several purposes to which the exercise given to them applies itself;—say, powers applied.

14.—i. Powers in the abstract, are—1. the prehensive; followed of necessity by 2. the dispositive; 3. the imperative. Followed of course by, and correspondent to, power prehensive, is, in every instance, in relation to the same individual subject-matter, power dispositive: for whatsoever subject-matter is for any purpose of justice taken in hand, whether it be thing or person, must for that same purpose be in some ulterior way disposed of. For the several modifications of the disposition capable of being thus made, see below, Power applied.

15. Applicable as well to persons as to things, are—1. the prehensive; and 2. the dispositive: owing to the nature of the subject-matter, applicable to persons alone and not to things, is the imperative.

16. According to the nature of the act by which compliance is manifested towards the exercise given to it, power imperative is either—1. jussive, or 2. inhibitive, or say prohibitive: jussive, where it is by relative motion that the compliance is manifested; inhibitive, where it is by relative rest that the compliance is manifested. Positive is the name given to the act when it is by relative motion that it is to be performed, or say exercised; negative, when it is by relative rest. Synonymous to a negative act, is an act of forbearance, or say abstinence; corresponding verb, to forbear, to abstain from.

17. Reference made to the relative time of the ministerial negative act called for, an inhibitive power is distinguishable into—1. perpetually inhibitive; or, 2. suspensive, or say sistitive.

18. Considered as being productive of the effect sought by the exercise given to it, power imperative is termed coercive; the effect, coercion:—power jussive, compulsory, or say compulsive; the effect, compulsion:—power inhibitive, restrictive; the effect, restraint.

19.—ii. As to the applied powers, the names of which are taken from the consideration of the particular purposes to which they are applied, those which on the present occasion there will be need for the employment of, are the following. They constitute the result of the first division made of the great aggregate: some of them will of course require to be subjected to ulterior division, as the objects requisite to be presented to view become more and more particular, and less and less extensive. Powers thus applied are these:—

20.—1. Power sistitive. Of the imperative, this will be seen to be the inhibitive branch, applied by the Dispatch Court Judge to the special purpose of stopping ulterior proceedings in the existing Courts, and in particular the Equity Courts, in which he finds the several suits carrying on, the cognizance of which requires, for the purpose of this system of dispatch, to be transferred to his hands. Operator magisterial, the Dispatch Court Judge: operators ministerial, the appropriate subordinate functionaries belonging to those same existing functionaries. See below, tit. Operators.

21.—2. Power evocative. Of that same imperative power, this will be seen to be the jussive branch applied to the special purpose of causing to be transferred into the possession of the Dispatch Court Judge the subject-matters requisite:—1. Operations; 2. Things; 3. Persons—are these same subject-matters:—1. Operations, or say acts, the several acts which may have to be performed in the course of the proceedings by which commencement, continuance, and termination, will be given to the suit thus evoked into the Dispatch Court:—2. Things, the several things intrinsically valuable, and relatively valuable, the possession of which may become necessary to the exercise given by him to the aggregate of his power: whether things corporeal or incorporeal; corporeal, whether moveable or immoveable:—things relatively valuable, the several written instruments and other documents, if any, that have been exhibited in the coart à quo on the occasion of the suit:—3. Persons, for the special purpose of securing the transference of those same things, and eventually for the elicitation of any such evidence as it may be found necessary to call for at their hands.

22.—3. Power punitive: exercisable on all persons omitting to pay obedience, or applying resistance or obstruction to such power imperative as the purpose in question may require to be exercised by the Judge. Special purpose of it:—by the fear of it, securing obedience to corresponding mandates by the issuing of which exercise is given to the imperative power in its several branches, as above.

23.—4. Power remunerative: exercisable for any special purpose, in so far as fear of punishment is insufficient for the accomplishment of that same purpose. Note, that remuneration, involving in it the necessity of eventual punition for the purpose of obtaining the matter of reward, is in its nature more expensive than punishment; besides being, to a great extent, less certain in respect of the production of the effect aimed at.

24.—5. Power satisfactive: exercisable in relation to persons, if any, by whom suffering shall have been incurred in consequence of aid lent to prehensive power when employed in the endeavour to produce obedience or surmount resistance or obstruction. Included in satisfaction, is compensation.

25.—6. Power self-extensive: exercisable in so far as by experience, or well and specifically-grounded and assigned anticipation, the several other powers hereby instituted and conferred may have come to be, in the eyes of the Dispatch Court Judge, insufficient for the accomplishment of the all-comprehensive end or purpose of this Act. As to this power, see art. from 71 to 92.

26.—7. Power self-regulative: power of making any such ulterior general regulations as may be found necessary to the accomplishment of that same general end or purpose: both these powers being, as per article 99, subject to instant disallowance by any one of the three several conjunctly supreme constituted authorities: namely, King, Lords, and Commons.

27.—vi.Operators. These will in the first place require to be distinguished into—1. those by whose acts exercise is given to the several powers—say magisterial, the several power-holders; 2. those by whose acts submission, or say compliance, is manifested in relation to the exercise given to those same powers—say ministerial operators.

28. In both cases, the hands employed in the operation may be either the person himself, who is spoken of as the operator, or those of some other person acting in his stead. In the first case, the operation and the operator may be said to be immediate; in the other case, unimmediate. In the first place, calling in aid the Latin language, the operation may be styled an operation propriâ manu; in the other case, an operation alienâ manu.

29. Note, that where the operator is the Judge, and the power exercised is the imperative, the hands employed by the Judge will naturally and most probably be his own; the operation, an operation propriâ manu. Where the power exercised is the prehensive, if the subject-matter be a thing corporeal or a person, the hands employed will be those of a subordinate, styled accordingly a prehensor; the operation accordingly, in so far as the Judge is operator, an operation alienâ manu:—in so far as it is a thing incorporeal, and thence not tangible, the act of prehension will, like the thing said to be prehended, be but fictitious; and, as will be seen, the power really exercised the imperative; and thence the operation performed, an operation propriâ manu.

30. In so far as delegated authority has place, the distinction between operations propriâ manu and alienâ manu has place: the party delegating, operating alienâ manu; the party delegated to, operating propriâ manu.

31.—vii. Relative time. Under this head, nothing presents itself as requisite to be said in addition to what is above.

32.—viii.Purposee, according to the most general and comprehensive description that can be given of them, to the accomplishment of which the exercise given to several of the above-mentioned powers requires to be directed, these:—

33.—1. Giving execution and effect to the ultimate decree, or say judgment, which the Judge, on the consideration of the law applying to the case, and the facts belonging to the case, as presented to his view by the evidence, may see reason to pronounce at the conclusion of the suit of which he has taken cognizance. Call it the ultimate, or say execution-performing purpose.

34.—2. Making appropriate provision before-hand for such execution and effect: namely, by securing the eventual forthcomingness of the several subject-matters, real and personal, necessary. Call it the instrumental, or say execution-securing purpose.

35.—3. Securing the exhibition of such appropriate and needful evidence as the individual suit in question happens to have afforded: namely, by securing the forthcomingness of the source of the evidence in each instance; the source, whether personal, real, or written,—written, consisting of personal exhibited through the medium of real. Call it the evidence-securing purpose.

36.—ix.Occasions on which exercise may come to be given, or require to be given, to the several above-mentioned powers. When considered in the most general point of view, these may be said to be as follows:—

37.—1. For exercise to be given to power imperative, need of obedience, or say compliance, for the several purposes in question, as towards the several mandates requisite to be issued by the Dispatch Court Judge.

38.—2. For exercise to be given to the prehensive power, disobedience, resistance, or obstruction, manifested to the exercise of the imperative power. Subject-matters on this occasion operated upon, as above: persons of all descriptions, things of all sorts, to the prehension of which resistance or obstruction is opposed; or to the subsequent disposal of them according to their several destinations.

39.—3. For exercise to be given to power satisfactive, power compensative included, need of compensation for damage sustained by aid lent in case of necessity to functionaries occupied in surmounting resistance or obstruction, as above.

40.—4. For exercise to be given to power remunerative, need of the motive produced by hope of good, in aid of the operation of the motives produced by fear of evil, as applied by exercise given to power punitive, for the purpose of surmounting resistance or obstruction, as above.

41. To one or other of these heads will be found referable whatsoever operations require to be performed, or written instruments to be exhibited, in the course of judicial procedure, whatsoever may be the subject-matter of the suit:—of procedure, whether in a case called civil, or in a case called penal.

Enactive.

Art. 1. The Judge of the Dispatch Court, when, and so soon as, he has determined to take to himself the cognizance of any suit at that time depending in any one of the Equity Courts in question, will make the arrangements requisite for staying all proceedings in that same court. Name of the mandate, by the delivery of which such stoppage will be effected, a Sistition mandate. Form as per Schedule No. VIII. For the course to be taken, for determining whether or no to take cognizance of the suit, see Section X. Suits cognisable, &c. and Section XIV. Examination of Solicitors.

Enactive—Instructional.

Art. 2. Persons, to all or any of whom such his sistition mandate will, upon occasion, be addressed, the following:—

i. The Town Solicitors, and where need is the Country Solicitors, of the several parties to the suit.

ii. The several parties to the suit.

iii. In the three several branches of the Chancery Court,—to-wit, the Lord High Chancellor’s, the Vice Chancellor’s, and the Master of the Rolls’ Courts,—the several Masters in Chancery.

iv. In the Equity side of the Exchequer Court, the Remembrancer.

v. Any other persons, if any such there be, to whom, for the effectuation of the stoppage, it is, in the judgment of the Dispatch Court Judge, necessary that such sistition mandate be addressed.

In so doing, it will be his object—to produce the requisite effect, in the speediest manner, and with the fewest mandates possible.

Art. 3. In a case in which the Equity suit is by a Bill of Injunction, having for its object the staying the proceedings in a Common Law suit,—power to the Dispatch Court Judge, to take cognizance of such Equity suit, in the same manner as of any other Equity suit; and in the same manner to hear and determine, and give execution and effect to the suit: and, for this purpose, to issue sistition mandates, if necessary, to any functionaries employed, or about to be employed, in the Common Law suit, the proceedings in which had been, by the Bill of Injunction, stopped; as well as to attorneys and any other persons concerned. As to Ecclesiastical and other Courts, see Arts. 69 and 70.

Enactive.

Art. 4. Exceptions excepted,—persons of all sorts—things of all sorts, written instruments included,—for dealing with all such matters, in all such modes as for the purposes of this Act, that is to say, the establishment and employment of the new judicatory in question, may be requisite and necessary, power is hereinafter given to the Dispatch Court Judge.

Instructional—Expositive.

Art. 5. Prehension. In this may be seen an operation, the performance of which may be requisite and necessary, in relation to persons of almost all sorts, and things of all sorts without exception.

Instructional—Expositive.

Art. 6. Prehension and Imperation. In this may be seen the operation, which it may be requisite and necessary to perform, in relation to persons of all sorts, exceptions excepted, as per Article 27—prehension, that is to say, in some instances, without need of antecedent imperation; in other instances, not unless and until imperation relative thereto has antecedently been performed.

Art. 7. In relation to the same subject-matter, followed, of course, must exercise given to power prehensive be, by exercise given, in some shape or other, to power dispositive: for whatsoever is for any purpose of justice taken in hand, will, in some ulterior way have to be disposed of.

Enactive.

Art. 8. Power Prehensive and Dispositive. Power to the Judge to cause prehend, and, for the general purpose of giving execution and effect to his decrees and other mandates, to make disposal of all such matters, the disposal of which is, in any way, necessary to the fulfilment of any purpose of this Act.

Expositive.

Art. 9. Subject-matter, relatively valuable,—subject-matter intrinsically valuable: under the one or the other of these heads will all the subject-matters here in question be comprised.

By subject-matters relatively valuable, understand all such as are so, relation had to the suit, be it what it may, which, on the occasion in question, for the purpose of this Act, the Judge is thus taking out of the hands of any at present existing Court, into his own hands.

Art. 10. Necessary to the enabling him to make disposal of all such intrinsically valuable things as are subject-matters of the suit in question, will be the possession of those same relatively valuable subject-matters: possession, that is to say, in conformity to their several and respective natures.

Enactive.

Art. 11. In relation to every suit, of which he takes cognizance, power is accordingly hereby given to the Judge, as far as may be, to take into his possession* all such documents as at that time are, or shall thereafter have come to be, in the possession of the Equity Court, in which such suit is in pendency; to-wit, whether such Court be the Master of the Rolls’ Court, the Vice-Chancellor’s Court, or the Lord High Chancellor’s Court.

Art. 12. For this purpose, he will issue, addressed to the Registrar of the High Court of Chancery, his document-transference mandate: tenor of it as per Schedule No. IX., giving therein notice of a day, on or before which the matters in question shall be delivered to the Registrar of the Dispatch Court, together with a list of the documents so delivered, and of all others, if any, which are expected, and a certificate, declaring that the articles in that same list contained, are all that have been respectively received or expected.

Art. 12*. The power of taking* into his possession the documents belonging to the suit, why thus conferred on the Judge of the Dispatch Court?

Answer.—Reasons:—

i. To the original existing Equity Court, unless and until restored to it, as per Section XXIII. Eventual Retro-transference of Suits, they cannot be of any use.

ii. To the Dispatch Court it may very naturally happen to them to be of use.

iii. For guidance to subsequent relative proceedings, knowledge of those antecedent is, in the nature of things, generally speaking, necessary: and, to this general rule, the particular case here in question presents no exception.

iv. The principle is recognised in practice, in the case of the transference of the record from the Common-Law Courts in Westminster to the County Courts at the Assizes,* on the occasion on which the trial is performed: that is to say, after an interval of six or twelve months, at the end of which, if anything is done, it is nothing more than the elicitation of the evidence; an operation which might so much better have been performed at the commencement.

Instructional.

Art. 13. In the most ordinary state of things,—on the part of the proposed defendant, the forthcomingness, besides the advantage of contributing to secure the performance of the service, as above, in the event of its being found due, will have the effect of throwing more light upon the state of the case, in respect of the matter of fact, than could be thrown upon it by the presence and examination of any other person: and, in this case, by such his presence, both these desirable purposes would be accomplished at the same time. But if, in consequence of such examination, as above, the state of the case appears to be such, that no benefit is likely to be produced, either to the other party or to the defendant himself, by such his attendance—at any rate, not till some light has been thrown upon the facts of the case by the examination of some other person or persons—in this case, not of the defendant, but of such other person or persons, will the examination be taken in the next place.

Thus much, as to things really existing, called by lawyers things corporeal. As for things fictitious (called by them things incorporeal, or in one word rights,) and that which prehension will be found to mean, when applied to them, and in particular those rights in the prehension of which functionaries under the name of sequestrators are wont to be employed in and by the Equity courts,—as to these things, for the prehension of them, no intermediate agent will be necessary.

Enactive.

Art. 14. If on the day so appointed, such transmission, as per art. 12, has not been effected, the Judge will, on the then next day or at any day thereafter, dispatch to the official chamber of the Registrar, a Prehensor, with directions to prehend, and bring with him the instruments in question, wheresoever they are to be found. For what belongs to a prehensor, see Section VII. Prehensors, &c.

Art. 15. To the exercise of this power should any resistance be made,—power to such prehensor to prehend and bring before the Judge, any or every person so resisting: whereupon,—after taking and making entry of the examination,—to wit, of all persons so resisting, and of any such other persons to whom it has happened to be in a condition to furnish evidence in relation thereto,—he will, if he thinks fit, whether for the purpose of procuring compliance, or for that of punishment for the transgression, commit any person so resisting, to any such prison in the city of London, or any one of the four thereto contiguous counties, as to him shall seem meet. Name of the warrant, or say mandate, issued for this purpose, an Incarceration mandate. Form thereof, as per Schedule No. X.

Art. 16. Term for and during which the incarceration produced by such commitment shall be appointed to continue,—any number of days, not exceeding seven entire days, exclusive of odd hours, reckoning from the moment of commitment:—the hour as well as day of liberation being in the mandate of commitment mentioned;—which said time may, as often as shall be judged by him to be needful, he renewed by a fresh incarceration mandate, and may at any time be terminated by a disincarceration mandate. Form thereof, as per Schedule No. XI.

Art. 17. To the exercise of such prehensive power should any resistance or destruction be opposed, power to the prehensor to give exercise to his appropriate aid-compelling power, as per Section VII. Prehensor, &c. art. 15.

Art. 18. For giving execution and effect to such document-transference mandate, as per art. 12, power to such prehensor to call upon any person belonging to any office appertaining to any such Equity Courts, to aid him in the selection of the appropriate instruments: and, in case of refusal, or apparently intended delay, in respect of the performance of such service, to prehend any such person, and bring him before the judge, who will accordingly deal by him as per art. 14, 15, 16.

Art. 19. Of all proceedings carried on in relation to the exercise given to any of the above powers,—including all evidence thereto relative,—the Registrar, under the direction of the Judge, will take minutes, and make entry in the register.

Art. 20. In these minutes will be contained not only the evidence elicited, but the questions, or say interrogatories, by which the several statements were respectively elicited; and in both instances the very words which were employed.

Art. 21. After such transference as above,—to whatsoever written instruments or other documents it shall have happened to be delivered in, or tendered to, any office belonging to the above-named Equity Courts (as per art. 11) the officer having the direction of the business of such office is hereby required, on the earliest day thereafter possible, to transfer the same to the office of the Dispatch Court Registrar (as per art. 12:)—and, to every such subsequently-received instrument, apply the powers for securing the transference thereof, as above:—and moreover, to these several provisions the Lord High Chancellor, Vice-Chancellor, and Master of the Rolls, are hereby required, in case of need, to do what depends upon them respectively towards giving execution and effect.

Art. 22. To the Equity side of the Court of Exchequer apply the several powers, by articles 11 to 20 applied to these several above-mentioned divisions of the Equity side of the High Court of Chancery: but in such sort, that whatsoever in those same Chancery cases applies to the Registrar, applies, in the case of the Exchequer Court, to the Remembrancer.*

Art. 23. Subject-matters intrinsically valuable, or in relation to which exercise may be given to the Judge’s power of prehension, are—all subject-matters, of which in the nature of things the prehension is possible.*

Expositive.

Art. 24. These same subjects are either persons or things: things are either corporeal or incorporeal; things corporeal, again, are either immoveable or moveable. Follow exemplifications and explanations presently.

Art. 25. In relation to things intrinsically valuable, apply all the several powers as above, by articles 11 to 20 applied to the purpose of surmounting non-compliance, resistance, and obstruction to prehension and disposal of things relatively valuable.

Art. 26. Purposes, for which such prehension may be made—(prehension, whether of things or persons)—these:—

i.Execution-effecting purpose: giving execution and effect to that disposition of substantive law, on which the suit is grounded:—execution-effecting; or say, ultimate or effective purpose.

ii.Execution-securing purpose: securing to the Judge the means of effecting the aforesaid effective purpose, in the event of his seeing reason so to do:—execution-security; or say, interlocutory, intermediate, interventional, provisional, enabling, instrumental, or defeasible purpose.

iii.Evidence-securing purpose: making effective provision for the elicitation of such evidence as it has happened to the suit to afford, in relation to the several matters of fact on which the demand and the defence respectively shall have been grounded:—securing the elicitation of the evidence; that is to say, by securing the forthcomingness of the persons, things, and written instruments, or other documents, which are respectively the sources of it.

Instructional.

Art. 27. On the occasion of exercise given to the Judge’s prehensive power,—mementos, which, for his guidance in respect of the choice to be made by him of subject-matters of such exercise, he is required to bear in mind, are these which follow:—

i. Introductory observation, this: not only in respect of the subject-matter of the suit, but in respect of money for incidental costs, may need of prehension have place. Hence, to any degree small may be the sums, for the discharge of which prehension may have to be made: and to any degree indigent may persons be, whose misfortune it is to have been made defendants.

ii. In making prehension for the execution-securing purpose,—take such subject-matters as are applicable to the execution-effecting purpose, in preference to such as are not.

iii. Accordingly, in preference to persons† take things: that is to say, things of all sorts—moveable, immoveable, and incorporeal.

iv. Among things;—in preference to those which are valuable to no person but the owner, and other things not valuable to the plaintiff, take such as are valuable to the plaintiff,—that is to say, capable of being rendered so by transference of possession, temporary or definitive.

v. In preference to things, by the prehension of which no effect can be produced, other than that of burthen‡ to the defendant,—take those by the prehension of which benefit as well as burthen is producible; that is to say, benefit to the acquirer thereof, as well as burthen to the loser.

vi. Among things, by the prehension of which benefit as well as burthen is producible,—take in preference those by which the greatest benefit to the plaintiff is producible, in preference to those by the prehension of which no benefit is producible to the plaintiff, or not so much as by the prehension of other things.

vii. Accordingly, in preference to things incorporeal, or say rights not transferable,—take things corporeal, or rights transferable.

viii. In preference to a thing, in which a third person,—that is to say, a person who is not a party to the suit—or say, who is a stranger to the suit, has an interest, or say a share,—take things in which no person other than the party in question has a share.

ix. Not that by any such extraneous interest any objection will be afforded, if it be clear that by the prehension of the thing in question, the interest of such stranger to the suit is not damnified; or, being damnified, will have received adequate satisfaction in every shape, compensation for the damage included.

x. Take, for example, the mode of prehension styled, under the existing system, foreign attachment:—stopping the payment of a debt due to the defendant in the suit; stopping the payment, that is to say, with a view to its being actually or eventually made to the plaintiff in that same suit; for, foras-much as the money is in all events to be parted with, it will commonly make no difference to the stranger to the suit in question, whether it be by the one party or the other that it is received.

xi. Of the case where, by the prehension, the interest of a stranger to the suit is liable to be affected, not this instance. At the hands, whether of an individual or of Government, the defendant receives,—in the shape of salary, for example,—a continuous remuneration for correspondently continuous service due. If so it be, that by abstraction made of the portion in question of such his pecuniary means, the service capable of being rendered by him is liable to be rendered less valuable to the stranger to the suit, as above, the detriment to the interest of the stranger will be to be taken into account.

xii. In preference to a subject-matter, of which the party has not the actual possession, but only in relation to it the right of possession, to be taken in future, absolutely or in contingency,—take one of which he has the actual possession. For example, to the prehension of an estate in land, in remainder or reversion, for the purpose of raising money by the sale of it,—take in preference an estate in possession, of equal marketable value. For, commonly, such thereafter-eventually-about-to-be-possessed estate will not sell, without more disadvantage to the party than in the other case.

xiii. Note, that if of things, by the prehension of which burthen alone is produced, prehension is allowed to be performed,—it is only, either for the execution-securing purpose, or for the evidence-securing purpose: for, if by execution no benefit to the plaintiff is produced, the only beneficial execution-effecting purpose is, instead of being fulfilled, disfulfilled. By the imposition of any such burthen, no good purpose other than that of punishment can in any shape be produced; and, for punishment, by the supposition, in the sort of suit in question (namely, a purely civil suit,) no demand has place. In a suit of this class, if any such demand has place, it must be on the ground of some transgressions committed in the course of the suit in the Dispatch Court.

xiv. Among things, by the prehension of which benefit to the plaintiff will be produced, as well as burthen be imposed on the defendant,—take those, by the prehension of which without lessening that same benefit, burthen the least afflictive will be imposed on the defendant, in preference to those, by prehension of which, burthen more afflictive will be imposed on that same defendant.

xv. Example.—For the execution-effecting purpose,—in preference to household goods or stock in trade, for the purpose of their being sold, take portions of Government annuities, commonly and familiarly called, money in the funds or stocks.

xvi. In preference to things for the prehension of which the more complex, and thence the less surely effective and more expensive, mode of operation is necessary,—take those for the prehension of which the less complex, and thence the more surely effective and less expensive mode will suffice.

xvii. Example: here likewise, the preference given, as above, to prehension of money in the funds.

xviii. Further exemplification of the mode of minimizing afflictiveness:—Whether it be for the execution-effecting or the execution-securing purpose,—take, in preference to useful household furniture, trinkets and furniture merely ornamental: and, in preference to necessary tools and other instruments of workmanship, household furniture, useful as well as ornamental; in a word, all such things as are not necessary, in preference to all such as are.

xix. For the purpose of effecting the transmission of a right to a valuable thing for the use of the plaintiff, at the charge of the defendant,—never will the Judge seek to employ the unwilling hand of another person, in preference to the effecting it by his own hand, or by willing hands under his command.

xx. Accordingly, only for the elicitation of evidence,—whether for the purpose of determining the right to the subject-matter in dispute,—or for the purpose of ascertaining the existence, and securing the eventual forthcomingness, of the things in question,—or of property of the defendant to be received in lieu of them,—will the Judge prehend the body of the defendant: never, for no other purpose than such as the compelling his signature to a deed by which the right to the thing in question is transmitted to the plaintiff, or to any person on his account. For, if effected by the signature of the Judge, the transmission of the property might be the work of no more than a single instant: if endeavoured at, by compulsion applied to the individual, it might be staved off for years, or be prevented altogether.*

Art. 28. On whatever occasion the Judge performs prehension at the charge of one party,—it will be his care to exact, at the charge of the party at whose instance, or in whose favour he performs it, such adequate counter-security against abuse, as the nature of the case, and the circumstances of the parties, appear to him to require.*

Enactive.

Art. 29. In regard to any mass of property, constituting the whole or any part of the subject-matter of the suit,—power to the judge to place the same, for the purpose of the suit, under the care and management of persons, one or more,—in such number as he shall deem requisite,—to be chosen and approved of, by joint choice and consent of all persons interested therein: and if, after the party or parties on one side have made their choice, the party or parties on the other side refuse,—or, after invitation received, and adequate time allowed, omit,—to make their choice, nominating accordingly the same, or some other person or persons,—power to the Judge himself to make such choice and nomination in their stead. Name of a person so appointed, a Consignee. As to these, see Section VIII.

Art. 30. At the instance of any party to the suit, or of his own motion,—power to the Judge, at any time, to cause to appear before him, and submit himself to word-of-mouth examination, every such Consignee, or say Trustee, touching his proceedings on the occasion of the trust.

Instructional.

Art. 31. Note, that this special power he would have in virtue of his general powers. Sole cause of the special mention thus made of it,—maximization of the security against misconception and misinterpretation, in relation to a matter of such essential importance: to the end that the efficiency* of this same security may be the more clearly and fully conceived.

Art. 32. Reciprocally beneficial will be the application made of these several powers: at the charge of the Plaintiff for the benefit of the Defendant, as well as at the charge of the Defendant for the benefit of the Plaintiff.

Instructional.—Ratiocinative.

Art. 33. For the guidance of the Judge, are these suggestions delivered; not, in any instance, for the imposing on him a peremptory obligation; forasmuch as, to an extent more or less considerable, in many instances, it is not on any one of these pairs of competing circumstances considered by itself, but on several of them considered in conjunction, that, upon the whole, the course most proper to be taken will depend.

Enactive.—Ratiocinative.—Expositive.

Art. 34. In vain would be created, and conferred on a Dispatch Court Judge, the powers in general terms above mentioned, if the giving special and effective exercise to them depended on the concurrence of any authority, co-ordinate or super-ordinate to his own.

Accordingly, deemed wrongs, and constituted offences, are hereby all acts having for their object or tendency, the frustrating or weakening the relief hereby intended to be administered to suitors and persons having need to become suitors; and against those wrongs, provided will be seen hereafter the several appropriate remedies, by means of the correspondent specific powers.

Acts hereby constituted offences, by whomsoever committed, whether he be a suitor, a public functionary, or an individual at large, are accordingly those here following:—

i. Non-compliance with, or say disobedience to, or non-observance of, any mandate issued by the Judge for the sistition [Editor:?] of the suit, or for the transference of any written instrument or subject-matter thereto belonging, as per articles 1, 5, 6, 7, 8, 12.

ii. Resisting the transference of any written instrument, or any other document, from any other Court to the Dispatch Court: resisting—that is to say, by physical force, in an immediate way applied.

iii. Obstructing such transference: obstructing, that is to say, preventing, or needlessly retarding it, or doing any act in the intention of preventing, or needlessly retarding it.

iv. Purposely forbearing, or through negligence omitting, to afford aid to such transmission, when, by or by authority of the Dispatch Court Judge, requisition of such aid has been made.

v. Of anything immoveable, resisting or obstructing, the prehension or prehension-following, or say post prehensive, legal disposal, when the thing has been prehended, or endeavoured to be prehended, by authority from the Judge, for any purpose of this act.

vi. So, of anything moveable.

vii. So, of any incorporeal subject-matter of property: in which case the resistance or obstruction may be figurative, corresponding to the nature of the subject-matter.

viii. Retaking, or endeavouring to retake, any written instrument or other document, or thing, immoveable or moveable, after prehension as above.

ix. Resisting or obstructing the prehension or consequent legal disposal—say, the post-prehensive disposal—made, of any person, when endeavoured to be effected, for or on account of, any such resistance, obstruction, omission, or recapture, as aforesaid.

x. Resisting, or obstructing, in the Justice-chamber, any of the proceedings of the Dispatch Court, during the sitting thereof.

xi. In relation to any relatively important matter of fact, endeavour used to produce deception in the mind of the Judge acting as such: endeavour, by whatever means—whether immediately, or through the medium of any other person, or of any thing; and whether by communication of deceptions information, by word of mouth, or in writing, or by any other signs, evanescent or permanent, or by suppression of instructive information.

xii. Liberating, or endeavouring to liberate, any person, by force or fraud, from any such prehension, or post-prehensive legal disposal, as above.

Exemplificative.

Art. 35. Of obstruction to the proceedings of the Dispatch Court Judge, during the sitting of the Judicatory,—exemplifications these:—

i. Motion, produced in any mode productive of that effect.

ii. Sound, produced in any mode, inarticulate or articulate, by its loudness, or otherwise, productive of that effect.

iii. In particular, ungrounded ill-will or contempt, by language, gesture, or deportment, manifested towards the Judge, or any other person, during the sitting of the Judicatory.

iv. Continuance to speak, after silence imposed by the Judge.

Art. 36. Of the modes of such effectuation of, or endeavour at, deception, examples are the following:—

i. False assertion; whether spontaneous or in answer to any question, or say interrogatory, put in relation to the suit in hand—whether by the Judge, or by any other person hereby authorized to put the same:—interrogatory, whether in the oral, or say word-of-mouth form, or in the written form: oral, including all other evanescent forms of discourse; written, all other permanent forms of discourse.

ii. Forgery, of, or committed upon, any document, employed or designed to be employed, or of a nature to be employed, in the character of evidence, in any suit transferred to, or instituted in, or designed to be transferred to, or instituted in, the Dispatch Court: forgery, whether defalcative, fabricative, or alterative.

iii. Suppression, as applied to any evidentiary document, in the form of writing, or in any other tangible and permanent form:—suppression, to wit, whether definitive (destructive included) or temporary; and whether of the document itself, or of the information of its existence.

iv. Personation: committed by the delinquent’s pretending to be this or that other person.

v. Suppression of any material evidence which might otherwise have been orally delivered: suppression—of evidence, from whatsoever source, personal, real, or written; and whether by deception, by physical force, by intimidation, or by hope or receipt of remuneration.

vi. Production of, or endeavour to produce, by any other means, in the mind of the Judge, deception in relation to any relevant and relatively important matter of fact; relation had to the event or to the course of the suit.

Enactive.—Instructional.

Art. 37. Evil-consciousness, and heedlessness,* or say, want of due attention. In meting out the quantity of punishment, the Judge will bear in mind, and hold up to view, the differences produced by these two circumstances, in the evil of the offence.

Ratiocinative.

Art. 37*. On evil-consciousness depends almost the whole of the evil of the second order, composed as it is of danger, and alarm: danger, of repetition by the delinquent himself, or others similarly circumstanced; alarm, produced by the apprehension of that same danger. As to the evil of the first order, it consists in the suffering actually felt by individual sufferers, where there are any such persons, as in the case of a private offence there are always—in that of a purely public offence, never. In the case of a purely public offence, where the subject-matter of the offence is a subject-matter of property—money, say, or money’s worth—and nothing else, were it not for the evil of the second order, as above, no preponderant evil at all would be produced: no suffering to set against the enjoyment, the prospect of which constituted the motive to the offence. The evil of the second order, consisting as above of danger and alarm, is in the case of heedlessness, at the utmost small, commonly next to none; in the case of evil-consciousness, with intention naturally persisting, in extent in some cases commensurate with that of the whole country and its population—witness the case of an offence contributing to war, whether foreign or civil—it is in most cases indefinite, not to say infinite.

Enactive.

Art. 38. Power to the Dispatch Court Judge, to cause to be prehended and incarcerated, any person by whom any such frustration, as per art. 34, shall have been endeavoured to be effected:—time of prehension, the very instant after the commission of the offence, or as soon thereafter as may be; and this, whether the time and place of the endeavour be that of the sitting of the Judicatory, or, if need be, any other.

Art. 39. Term of incarceration, no longer than seven full days: but renewable at discretion, toties quoties, by a fresh mandate, or addition made to a former mandate, as often as the purpose shall be found to require.

Ratiocinative.

Art. 39*. Why such renewals, and these repeated at the end of such short terms?—

Answer.—Reasons:—

1. That by forgetfulness, the offender may not be left in a state of sufferance for a longer term than one week.

2. That the power-controuling eye of public opinion may be the more frequently drawn down upon the transaction.

Instructional.

Art. 40. Safe custody merely, or coercion,* —whichsoever of these two different objects it is that the purpose requires, the Judge will, on this occasion, be careful to have in view.

Expositive.

Art. 41. Coercion is either positive or negative: positive, that is to say, compulsive, or in one word, compulsion: negative, that is is to say, restrictive, or, in one word, restraint.

Enactive.—Instructional.

Art. 42. If safe custody only be the object, his endeavour will be to find some apt individual, to whom, with the consent of the person to be placed under such custody, he may accordingly be so placed.

Art. 43. Only in case no such apt person can be found, will the offender in question be consigned to a prison.

Art. 44. Some one person being responsible as consignee, pecuniarily responsible may be rendered other persons, in any other number, in so far as necessary.

Art. 45. When coercion is the purpose—as for example, compelling disclosure, or actual delivery, of a thing moveable,—apt for this purpose, as consignee, can be no other person than the keeper of a prison.

Instructional.

Art. 46. In what prison the incarceration shall in this case have place, the Dispatch Court Judge will determine: regard being had to convenience in respect of nearness of the prison to the Justice-chamber, and aptitude of the accommodation capable of being afforded by it.

Art. 47. For the interval, during which a person about to be consigned to the custody of a friend of his choice, is on the look-out for such friend,—he will continue in the custody of a prehensor—principal or depute: and in such custody he will continue, and, if need be, go about in quest of such consignee, until the time allotted by the Judge for the purpose has elapsed.

Ratiocinative.

Art. 47*. Extinguished on this plan will be the delay, expense, and vexation, attached to the practice of holding to bail, as at present carried on.

Enactive.

Art. 48. On, or at any time after, such incarceration,—power to the Judge to liberate the offender, on his finding security for the eventual surrender of his body, in any such mode or modes, in, and by which, to all parties taken together, the least quantity of inconvenience (danger of loss included) promises, in his opinion, to be produced.*

Instructional.

Art. 49. Referable to one or other of four heads will be found every remedy capable of being applied to the wrong done by any maleficent act (those here in question included,) which, by prohibition, explicit or virtual, has been converted into an offence: namely,

i. The preventive, or say the anticipative, or antecedently preventive.

ii. The suppressive.

iii. The satisfactive, including the compensative.

iv. The punitive, or say the subsequentially, or ulteriorly preventive.

Remedies preventive or suppressive are the above powers, and such applications as are hereby intended to be made of them.

Instructional.

Art. 50. Persons by whom, for the application of any one of these remedies, the requisite proceedings may be instituted, these—

i. An individual alleging himself to be, or in danger of becoming, a sufferer by any hereby, as above, prohibited offence.

ii. His Majesty’s Attorney-General.

iii. The Dispatch Court Judge himself, of his own motion.

Instructional.—Expositive.—Enactive.

Art. 51. Now, as to the punitive remedy. For the misdemeanours in art. 34 mentioned—all of them detrimental to the ends of justice in general, and to the end and purpose of this institution in particular,—the Judge will apply pecuniary punishment, or say mulct, and imprisonment, or say incarceration, at option and at discretion: at option, that is to say, having the choice whether he will employ one of the two, and which, or both; at discretion, that is to say, having at his choice, in regard to whichever of them he employs, the quantity of it he will employ.

Instructional.—Exemplificative.

Art. 52. Note well—that the suffering, and thence the punishment, for the offence, does not commence, till after, and at the point at which, the enjoyment, and thence the profit, in all shapes, from the offence, is taken away: to-wit, by pecuniary loss, or by other punishment, to an equivalent amount. A punishment, which falls short of being equivalent to the profit by the offence, operates, by the exact amount of the difference, in the character of a reward. This, accordingly, will the Judge, in meting out the quantity of the punishment, be careful to bear in mind and to apply to practice.

Art. 53. Mulct, appointed for the species of offence (suppose) £5: profit by the individual offence, £10. Consequence of the proposed penal law, reward to the amount of £5. In name and outward show, the law is penal: in effect, it is remunerative: operating in a way the exact reverse of that which, in appearance at least, was intended.

Art. 54. In meting out the quantity of the mulct, the Judge will be directed not by the absolute quantity, but by the relative quantity, relation had to the pecuniary circumstances of the delinquent. In the breast of a person, by whom property is possessed to the value of £40,000, less suffering will naturally be produced by a mulct of £10,000, than in the breast of a person who has no more than forty shillings would be produced by a mulct of ten shillings. Such is the interpretation which he will accordingly put upon the statute, called the Bill of Rights, in which it is said, “excessive punishment ought not to be inflicted.”*

Art. 55. Offence, say perjury, or subornation of perjury. Punishment (suppose) transportation, or imprisonment with hard labour for seven years. Less afflictive might it be to the offender to lose half or more of his disposable property, though it were £40,000, or £400,000, than be subjected for that length of time to that species of punishment.

Instructional.

Art. 56. For information as to the pecuniary circumstances of the offender,—the Judge, in so far as in his judgment the relative amount of the mulct contemplated renders it worth while, will make special inquiry: and this, as well by the evidence of the offender himself, as by evidence from any other quarter, or say, extraneous evidence. As to this, see Section XIX.: see also, as to the undangerousness and positive advantage of the powers herein conferred, note at the end of Section XXIV.

Art. 57. For the bringing into the shape of money whatsoever he thinks proper to be taken in the way of mulct, the Judge will take into account, and so far as meet is, take in hand and dispose of, whatsoever property the delinquent himself has power to dispose of.†

Enactive.—Instructional.

Art. 58. Exceptions excepted,—the pecuniary punishment, in so far as the means of undergoing it have place, will be preferred to the corporal.

Ratiocinative.

Art. 58*. The pecuniary, why preferred to the corporal punishment?

Answer.—Reasons:—

i. In the case of the pecuniary, to wit, out of the evil produced by the punishment, cometh forth—over and above the good consisting in the subsequentially-preventive efficiency of punishment, additional good: to wit, profit, applicable to the use of the individual wronged, or the public, or both, as the circumstances of the case may require: out of the corporal punishment,—good, over and above such preventive efficiency, none.

ii. In this case, imprisonment will be the punishment specially suited to the circumstances of the indigent,—pecuniary, to those of the opulent, offender.

Enactive.—Instructional.

Art. 59. Exception is—where of divers co-offenders one, being relatively indigent, is, as far as can be learnt, likely to receive for any mulct imposed on him, compensation at the hands of one or more who are relatively opulent. In this case, to the opulent it may be proper to apply, in addition to the pecuniary, the corporal punishment; lest after indemnifying his accomplice, he should be in receipt of net profit, in any shape, from the inefficiency of the punishment.

Enactive.—Instructional.

Art. 60. For the offence, be it what it may, where pecuniary is the shape in which, in the whole or in any part, the punishment is applied,—to the purpose of satisfaction, to wit, in the shape of compensation, for the suffering in all shapes produced on the part of individuals, will the produce of the mulct be applied, in preference to the public revenue.

Ratiocinative.

Art. 60*.—Reasons, these:—

i. Not less great is the subsequentially-preventive efficiency of the forced transfer, when employed to the profit of the individual, than if employed to the profit of the public revenue.

ii. Commonly it is even greater; inasmuch as (if there be any difference) if the purse into which the profit goes is that of the individual whom it has been his (the offender’s) endeavour to cause to suffer, and to whom he accordingly bears ill will, the suffering produced by the contemplation of the profit and enjoyment by such transfer will naturally be greater than will be the suffering produced by the contemplation of it, if the receiving purse is that of the public at large, toward which no such ill-will was borne by him.

Enactive.—Instructional.

Art. 61. If the pecuniary circumstances of the party damnified are better than those of the delinquent, the Judge will not take from the delinquent anything beyond what is adapted to the subsequentially-preventive purpose of punishment; for, if he does, the more he takes, the greater will be the aggregate composed of the sufferings of the two parties.*

Ratiocinative.

Art. 61*. The power to administer compensation, and award damages, why thus conferred on the Judge of the Dispatch Court?

Answer.—Reasons:—

i. True it is—that, under the regular system, by Judges are costs alone awarded; by Jury, damages. True: but no reason does this precedent afford, why it should be so under the here proposed summary system.

ii. If a suitor has to pay a given sum, say £20, what matters it to him whether it is by the fiat of a Jury or of a Judge that he has to pay it?—or whether, instead of costs or damages, the word employed be fine? So far as concerns the sum, on one and the same occasion, paid by him,—altogether immaterial* to him, as above, is the difference.

iii. That, in the present case, compensation, for suffering occasioned by misconduct, should be awarded,—is exactly as needful—as decidedly required by justice—as in every other case: but, if awarded at all, it is by this same Judge that it must be awarded; for by no other authority can it be. By a Jury it cannot be awarded, without giving existence to the very evil, which the here-proposed institution is employed to annihilate.

iv. To the Judge, by the supposition, every particular—on the one hand, of the suffering—on the other, of the misconduct by which it has been caused—is immediately and directly known. By no fresh evidence, by no fresh argumentation, could it be rendered more particularly or more completely so.

v. To the cognizance of a Jury would be to be presented, instead of the phenomena themselves,—at the end of an interval, by which the image of the facts in the memory would have been more or less truncated, obscured, and distorted, an alleged description, given by somebody or other (it is neither easy nor material to say who) of these same facts:—a portrait, ornamented on both sides with an embroidery of costly and useless eloquence.*

vi. But if, as above, to the quantity of money allowed to be abstracted on the score of punishment, no certain limit can with propriety be prescribed—how can, or why should, any such limit be prescribed to the quantity allowed to be abstracted on the score of compersation, or say damages? By whatsoever is abstracted from a man on the score of punishment, in no other shape can good be produced, than that of the contribution made to the prevention of subsequent similar offences;—to the would made by the past offence no healing balsam is applied:—whereas by every particle of the matter of good, not merely abstracted from the author of the wrong, but transferred to the sufferer by that same wrong, the would is in proportion closed, and contribution so far made to a perfect cure.

vii. As per article 1, indispensable necessity requires, that for execution and effect to be given to them, the decrees and other mandates of the Dispatch Court Judge should not be in any way or degree dependent on the free-will of any other Judicatory.

viii. Because, though nothing hinders that, under the procedure of the Judge, a Jury might be put to officiate in this Dispatch Court,—yet, of the complication of the machinery necessary to the introduction of that system, and the uncertainty resulting from the want of all determinate rules for its guidance, a quantity of delay and expense, incompatible with the application of the summary course of procedure to the field here in question, would be the unpreventible result.†

Enactive.—Ratiocinative.—Expositive.

Art. 62. Lest any evidence, which it has happened to the suit to afford, should remain unemployed, and for want of it, deception and misdecision be produced,—created, and conferred on the Judge of the Dispatch Court, to be applied to the purpose of this Act, are the ulterior powers following:—

i. Power to elicit evidence* from all sources without exception:—sources, whether personal, real, or written; quasi-written included: personal, derived from persons: real, derived from the appearances of things: written, derived from persons, and communicated through the medium of things, that is to say, paper, written on, or any other matter so dealt with, as to constitute a visible or tangible and permanent instrument of discourse: personal evidence, whether that of an evidence-holder at large, or say, an extraneous evidence-holder, or that of an evidence-holding party, on either side of the suit, who respectively are by this same means rendered evidence-yielders.

Art. 63.—ii. So; to elicit evidence in all shapes: that is to say, whether responsive, or spontaneous:—responsive, that is to say, in answer to questions, or say interrogatories;—spontaneous, that is to say, uttered by a person to whom, on the occasion in question, no interrogatories have as yet been addressed:—responsive, whether by oral, or say word-of-mouth answers, to questions orally uttered, or epistolarily uttered, in a written or quasi-written shape: the evidence elicited in the orally-uttered shape being, by means of counter-interrogation and otherwise, more effectually secured against the danger of being contributory to deception: in the epistolarily-uttered shape, admissible for the purpose of obviating expense, or delay, or both, when likely to have place, in such quantity, as by the evil thereof to outweigh the evil likely to be produced by the probability of misdecision; that is to say, for want of the security afforded against it by the oral mode of elicitation, subject to counter-interrogation, as above.

Art. 64.—iii. So, on every occasion, to permit questions to be put, not only by parties on both sides, and their several professional assistants, but also by any other person at large, by whose interrogation a promise appears to be afforded, of its being productive of instructive answers.

Art. 65.—iv. So, of his own motion, or say spontaneously, to put questions to a person under examination, or say an Examinee, so it be vivâ voce, and in open judicatory; without waiting for spontaneous narration on the part of the Examinee, or for questions put to him from any other source, as above.*

Ratiocinative.

Art. 65*. Why admit of the Judge’s instituting—of his own motion, without application from any other quarter, an examination, and thereby a suit?

Answer.—Reasons:—

i. Of information from any other quarter, the only use is, in relation to the facts in question, to plant knowledge in the mind of the Judge.

ii. This being the case,—if by means of his own observation such knowledge be possessed by him, so much the better.

iii. Obviated, by the means here in question, is the danger of the evidences not being possessed by him at all; namely, by reason of its not being presented to him from without.

iv. So, likewise, all such delay and expense, as might have been produced by the presentation of it at a later period.

v. To such knowledge, by what means soever obtained by the Judge, the same publicity will, of course, be given, as will be to any extraneous evidence.

vi. On this plan, in case of delinquency in any shape, the certainty,† of the application of the punitive, and of the other remedies, in so far as respectively applicable, will be at its maximum.

Enactive.—Instructional.

Art. 66. For the obtainment of evidence, which how material soever, might not otherwise have been obtainable, although in a superior degree presenting a probability of being impartial, and thence trust-worthy,—created hereby, and conferred on the Dispatch Court Judge, is the additional power following. By means of the evidence elicited at the outset, the Judge will in many cases see reason to believe, that from such or such an individual, considered in the character of an evidence-holder, evidence material to the suit may, in all probability, be elicited. In such case, whatsoever advance, if any, of money, is regarded by him as requisite to be made to such evidence-holder, power is hereby given to him to cause it to be made: made, by all parties, in so far as they actually take part in the suit; and this, without regard to the question, in whose favour such evidence is most likely to operate.

Art. 67. In what proportion such advance shall be made by the several parties,* the Judge will determine, consideration had of their respective pecuniary circumstances.

Art. 68. For the purpose of securing compliance with this requisition, he may announce to each such party his intention, in the event of non-compliance, to proceed as if the evidence in question, having been elicited, had been in any degree, how high soever, unfavourable to the interest of such non-complying party: and, accordingly, in case of necessity, so may he proceed: and such non-compliance may be considered and spoken of by him as an exemplification of that species of fraud, the result of evil-consciousness, which is practised by suppression of evidence.

Ratiocinative.

Art. 68*. Reasons:—Evils by this same power obviated:—

i. Evil the first: misdecision, through mendacity produced by bribery.

ii. Cut off will thus be a source of undue favour, which, under the existing system, has place on the part of witnesses: namely, under the notion of advance made, for no more than the expense necessitated by the journey, to and fro, with demurrage, and compensation for loss of time,—receipt of money in excess, in addition to what is necessary;—money advanced, for the purpose, and with the effect, of a bribe. By committing to the discretion of the Judge, the determination of the sum, and the imposing—upon all parties—alike, or in proportion to their pecuniary circumstances respectively, the burthen of the advance,—this source of corruption will be cut off.

iii. Evil the second: oppression and depredation, by imposition of needless costs. In the present state of things, a suitor, who, in respect to the subject-matter of contestation, is confident of being deemed to have right on his side,—and, on that score, of obtaining the reimbursement of his costs, at the hands of the party or parties on the other side,—has it in his power to heap oppression on his adversary to an indefinite amount, by needless expenditure on this score: oppression—and moreover depredation for the benefit of persons connected with him:—for example, his solicitors or other lawyers.

iv. The richer a man is, the stronger is the temptation into which he may be led, by the invitation thus given to him by the existing state of things.

v. This is among the resources, which will of course be seen presenting themselves to the hand of the dishonest—the malâ fide suitor, and his authorized professional accomplice.

Enactive.—Exemplificative.

Art. 69. If a question, the ultimate decision of which depends jointly upon the proceedings in an Equity Court, and those in an Ecclestastical* Court, is in pendency in an Equity Court,—cognizance thereof may be taken by, and thence transference made of both suits into, the Dispatch Court.

Examples are as follows:—

i. If, on the ground of insanity, the validity of a marriage is disputed, or about to be disputed, in an Ecclesiastical Court.

ii. If the subject of contestation is the validity of a last will, or the disposal of the property under it.

Enactive.—Ratiocinative.—Exemplificative.

Art. 70. As to the designation of the species of subordinate Courts, not sufficiently comprehensive is the preceding article. Another example is afforded by whatsoever intercourse an Equity Court holds with any Common-Law Court, whether of record or not of record.*

It is therefore hereby provided, that whatsoever authority, in the course of any suit, for the effectuation of the object of the suit, the Equity Court has need to make exercise of, in relation to the proceedings of any Court thereby and in so far rendered subordinate to it, or in relation to any functionary thereto belonging, the same authority is the Dispatch Court authorized to exercise in relation to that same subordinate court.

Enactive.—Ratiocinative.

Art. 71. Dispatch Court Judge’s self-extensive, and provisionally, or say eventual enactive, powers. Lest, for want of adequate power in the Judicatory, the beneficial purpose of this Act should in any respect fail of being fulfilled,—power is hereby given to the Judge, from time to time to make any such provisional arrangements,—subject to disallowance by his Majesty or either House of Parliament, in manner hereinafter mentioned,—as in his judgment shall, for that purpose, have been found requisite and necessary, Name of the instrument, by which any such arrangement is effected, a Judiciary-bred eventual Act, or, Statute supplemental to—this present Act, naming it.

Instructional.

Art. 72. Circumstances, indication of which will be attached to this instrument, the following:—

i.Day, on which, in manner hereinafter mentioned, it is published.

ii. Day, on which it will, if not disallowed, acquire binding force.

iii. Day, on which, as in the case of an Act of Parliament, if different from that same day, it will, as is customary in Acts of Parliament, take its commencement.

iv. Day, on which the obediences, or say, observances, or compliances, thereby called for, will begin to have place.

Model for such eventual statute in other respects, the present Act.

Formula serving for the introduction of an eventual statute of this sort, see in Schedule No. XII.

Enactive.

† Art. 73. After receiving the signature of the Judge, his official and personal name included, the manuscript of each such supplement will, by the Registrar, be delivered to the King’s printer; and as soon as may be, whenever the impression is ready for distribution, a printed copy thereof will, under the same signature and by the same hand, be delivered into the hand or the office of the Speaker of the House of Commons, for the use of the House of Commons; another, in like manner, to the Speaker of the House of Lords, for the use of the House of Lords; and another to the President of his Majesty’s Privy Council, for his Majesty’s use; and, of such several deliveries notice will, on that same day, in like manner, be delivered, for immediate insertion, to the printer of the London Gazette, and to the printers of such other newspapers, if any, as to the Judge shall seem meet.

Ratiocinative.

Art. 73*. Why, at the commencement of the time appointed for disallowance, cause Judge’s supplemental Judiciary-bred eventual Acts to be printed, and notice of the impression given?

Answer.—Reasons:—

i. Such impression will be analogous to the impression given to proposed Acts of Parliament, when, according to the present practice, they are in the state of Bills.

ii. By the two notifications,—namely, to the two Houses of Parliament,—instead of one and no more as at present,—as also to the public at large,—a correspondent security will be given, against all abuse of this same eventually enactive power.

Enactive.—Instructional.

Art. 74. Length of time for disallowance or suspension,—whether performed by his Majesty, the House of Lords, or the House of Commons,—will be [seven] full days, exclusive of the day on which the delivery of the printed copy of the supplement in question has been made.

Art. 75. Days from which the length of time will be computed, these:—

i. During the sitting of Parliament, neither House being in a state of adjournment, the day of delivery, as above.

ii. In the case of the House of Lords,—if the House be under adjournment, the day on which the House meets.

iii. In the case of the House of Commons, if the House be in a state of adjournment, the day on which the House meets.

iv. During the recess, in the case of his Majesty,—if neither absent at more than [one hundred] miles distance from his Majesty’s palace in the metropolis, nor labouring under an indisposition incapacitating him from attention to business,—the day on which such delivery, as above, is made to the President of his Majesty’s Privy Council.

v. If absent at a distance greater than [one hundred] miles,—the day on which his Majesty has returned to his said palace, or arrived elsewhere within that same distance, as certified to the Judge of the Dispatch Court, by the said President.

vi. If labouring under indisposition as aforesaid,—the day on which such indisposition shall have ceased; as, in like manner, certified to the Judge of the Dispatch Court by the said President.

Enactive.

Art. 76. Power to the Judge to add, to any amount, to the above-mentioned length of time, but not to defalcate from it.

Art. 76*. On each individual occasion, respect for the legislative authorities will dispose him to make any such addition as can be made without detriment to the ends of justice.

Enactive.

Art. 77. If, on any occasion, through inadvertence, or under the pressure of some unforeseen exigency, it should happen to him to have made defalcation,—such defalcation may be, on his part, a misdemeanour: but no act which, on the ground of the exercise so given to his provisionally-legislative power, he may have performed in his judicial capacity, will on that account be void.

Art. 78. Of the issuing of such eventual Act, information will be given by the Registrar, by delivery of a printed copy thereof, under the signature of the Judge, to the several constituted authorities, in manner following:—

i. To his Majesty, by delivery to the President of his Majesty’s Privy Council.

ii. To the House of Lords, by delivery to the Speaker thereof.

iii. To the House of Commons, by delivery to the Speaker thereof.

iv. To the Secretary of State for the Home Department, by delivery to the Secretary for the time being, or any Under-Secretary of his.

Instructional.

Art. 79. To the care of the Judge it will belong, to leave open to his Majesty and the two Houses, for the disallowance of this power, as large a quantity of time as the exigency will admit of.

Enactive.

Art. 80. If Parliament be not then sitting, or either House be in a state of adjournment, the giving exercise to this power of disallowance—or say negation power—will, of necessity, belong exclusively to his Majesty, as above.

Enactive.—Instructional.

Art. 81. When the day appointed for the commencement of such eventual enactment is arrived,—if no instrument declaratory of such disallowance has in the mean time been received by the Judge, the Act will take its place among the temporary Acts of that same, or if Parliament be not sitting of the preceding session, and will bear on its title the name of the day on which it begins to be in force.

Art. 82. Of such certificate, as per art. 75, immediate notification will, under the care of the said President, be made to all suitors of the Dispatch Court, and to the public at large, in the London Gazette: to wit, in a Gazette Ordinary or Extraordinary, as the case may require.

Art. 83. To such disallowance or suspension, as per art. 74, expression will be given in manner following:—

i. If effected by his Majesty, by the word “disallowed,” or the words “Suspended untilmeeting of Parliament,” written on the instrument in question, with his Majesty’s signature thereto attached, and the counter-signature of the President of his Majesty’s Privy Council.

ii. If effected, as above, by the President of his Majesty’s Privy Council,—by the single signature of the said President.

iii. If effected by the House of Lords,—by the words “By the House,” and the signature of the Speaker thereof.

iv. If effected by the House of Commons,—by the words “By the House,” and the signature of the Speaker thereof.

Art. 84. For the purposes aforesaid,—power to his Majesty, from time to time, to appoint to officiate as Deputy to the President of his Majesty’s Privy Council, on the occasion of his Majesty’s absence, as above, or indisposition,—any other Member of his Majesty’s said Council.

Art. 85. Each such Judiciary-bred eventual Act, when by expiration of the disallowance time it has received the assent of his Majesty and the two Houses, and thus passed into a law,—will be aggregated to the rest of the Acts of Parliament: but, for distinction’s sake, in the title of it will be inserted, before the word Act, the words Judiciary-bred appropriately confirmed: and, in place of the day of its date, as at present, will be inserted the word submitted, on such a day, mentioning it, and the words confirmed, and passed, by expiration of disallowance time, on such a day, mentioning it.

Enactive.—Ratiocinative.

Art. 86. For the more effectual check to arbitrary power and usurpation of legislative power, by the judicial authority,—to each article of his Judiciary-bred eventual Act, the Judge will subjoin an indication given by him of the mode in which the same is, in his opinion, conducive to one or more (mentioning them) of the several ends of justice:—prefixing, to the name of the evil corresponding to the ends of justice, the words—“Reason, obviating.” This done, the reason-assigning, or say ratiocinative, matter so expressed, will stand thus—“Reason, obviating mis-decision;” or “Reason, obviating non-decision;” or “Reason, obviating needless delay;” or “Reason, obviating needless expense;” or “Reason, obviating needless vexation;”—prefixing to each such reason, if more than one, a numerical figure, indicative of the order in which it stands.

Art. 87. In case of disallowance,—to these reasons of the Judge, will be applied, by the respective superior authorities, counter-reasons, in one or more of the forms following, namely:—

i. Disallowed, as being detrimental to one or more of the ends of Justice (naming it or them.)

ii. Disallowed, as being detrimental to his Majesty’s prerogative.

iii. Disallowed, as being detrimental to the privileges of the House of Lords.

iv. Disallowed, as being detrimental to the privileges of the House of Commons.

Art. 88. From the President of his Majesty’s Privy Council, will every reason assigned in his Majesty’s name be understood to emanate: in respect of it, it is he that will be understood to be responsible.

Art. 88*. Why state the reason, assigned by the President of the Council, as his reason, and not that of the Sovereign?

Answer.—Reason:—To avoid compromising the Royal dignity, by controversy: especially in the case of a female sovereign, or in the case of a Regency.

Art. 89. If, on any occasion, it should be the pleasure of the House of Lords not to assign any reason for its disallowance,—the Speaker thereof will add to the word disallowed, the words without reason assigned: and so in the case of the House of Commons.

Art. 90. Instead of disallowance or suspension, should it be the pleasure of either House to take for a subject-matter of amendment, any such Judiciary-bred eventual Act,—as if it were a Bill,—so of course it will be.

Enactive.—Expository.

Art. 91. Included in this power is—that of making regulations for the conduct of the business of this Judicatory: as in the case of those regulations, of generally-applying and permanent effect, which, in the language of the Westminster-Hall Courts, are styled Orders, or Rules and Orders.

Ratiocinative.

Art. 91*. This self-extensive power,—why give to the Judge a power thus unprecedented? Answer.—Reason:—Beneficial effects, the following:—

i. Making, without the delay of an Act of Parliament and the correspondent consumption of the time of Parliament, provision for unforeseen defects and exigencies.

ii. Committing to the functionary who, by his appropriate aptitude, derived from such experience and correspondent attention as cannot have had place in the instance of any other person, is best qualified, the duty of making on each occasion the provision requisite.

iii. Giving an example of an arrangement, having for one of its objects, or say ends in view, the maintenance of the constitutional subordination of the judicial authority to that of the legislature.

iv. In outside show, by this arrangement, addition is made to the power of the Judge; in design it is, and in effect it will be seen to be—the applying a limitation to it: and that a highly needful one.*

Enactive.

Art. 92. To the validity of any article in any such Judiciary-bred provisional Act, its repugnancy, how decided soever, to any preceding Act of Parliament, will not constitute any objection.

Ratiocinative.

Art. 92*.—Reasons:—

i. Scarcely proposed could be any enactment, in relation to which might not be found, in this or that statute, some general clause, to which such proposed enactment might not, and not altogether without truth, be stated as repugnant.

ii. Witness, for example, the clause in Magna Charta: “We will not deal with any man” (so and so) “but by the judgment of his equals, or by the law of the land.” Here then, it might be said, is a law of the land, to which the proposed enactment in question would be repugnant.

iii. An enactment having its origin in this source would not, in any instance, have received the force of law, without having received the assent of all three branches of the legislative body as truly as any Act of Parliament that ever was made.

iv. Of Judge-made law every proposition to which the force of law is given, is repugnant, at any rate, to this clause of Magna Charta, and commonly to this or that clause in some other statute.

v. No ground can be stated, for any apprehension, of a plan, formed by the Judge of this proposed Court, for giving to his power any extension detrimental to the ends of justice.

vi. Purged as he is of sinister interest by the disallowance of all fees, no motive for any such undue extension could he have.

vii. Supposing him actuated by any such sinister motive, no ground could he have for any such hope, as that of seeing any such plan carried into effect. Not proposable by him could be any enactment, which would not run counter, or be thought to run counter, to the particular interest of Judges, and of all persons linked to them by a community of sinister interests,—and thereby excite, and bring out into action, their opposition to it in both Houses, if for such opposition any colour could be found.

Enactive.

Art. 93. Null and void will be any operation, by which,—immediately, or in whatsoever degree remotely,—obstruction is offered to the operation of the Dispatch Court: for example, by Certiorari, Writ of Error, Mandamus to or from a Common-Law Court; Injunction by, or Appeal from, an Equity Court. By any such proceeding should any such obstruction be attempted, the Dispatch Court Judge will proceed as if no such proceeding had issued.

Art. 94. In pursuance of an Incarceration Mandate from the Dispatch Court Judge, a person (suppose) has been incarcerated,—and, by some existing judicatory, a writ of Habeas Corpus—or say a Body-adduction*mandate—has been served upon, or say delivered to, the keeper of the prison, in which the incarceration has place. In this case,—if, for the issuing of such body-adduction mandate, the judicatory in question has lawful authority,—obedience thereto will in course be paid. But, with the body, the keeper will transmit the incarceration mandate; and upon sight thereof, the judicatory in question is hereby required to remand the prisoner, in the custody in which he came, to the prison from which he came.

Art. 95. By the Judge or Judges by whom such body-adduction mandate had been issued, or by any other Judge or Judges, should the prisoner, instead of being remanded, have been disincarcerated, or sent into or to any other place of confinement,—power to the Dispatch Court, by a fresh incarceration mandate, to cause the re-incarceration of the said prisoner: and so, toties quoties.

Art. 96. Power also to the Dispatch Court Judge to inflict on the person or persons concerned in such disincarceration—one, or more, or all of them—at option and at discretion, such punishments as in and by art. 51 are appointed: stating, on the occasion in question, whether the delinquency had for its cause evil-consciousness or want of due attention (art. 37.)

Ratiocinative.

Art. 96*. Why thus give to the judicatory power to cause the adduction of the prisoner, divested at the same time of the correspondent power of disincarceration?

Answer.—Reasons:—

i. To obviate all power of abuse in the hands of the Dispatch Court Judge.

ii. To obviate on the part of the public at large all suspicion of such abuse.

Enactive.

Art. 97. For any expense and vexation, produced by the application made for such body-adduction mandate, power to the Dispatch Court Judge, by his compensation-a-warding mandate, to administer, at the charge of any or all the individuals who have been contributing to the production of such expense and vexation, compensation to the respective use of those who have been sufferers by it.

Ratiocinative.

Art. 97*. Why thus give power to the Dispatch Court Judge, not only for frustrating all endeavours, on the part of the existing authorities, to frustrate the incarceration performed by him, but moreover to impose on them the burthen of compensation and even of punishment?

Answer.—Reasons:—

i. To omit anything that was necessary to the impossibilizing the efficiency of all chances for such frustration, would be—to establish eventual appeal from the Dispatch Court to some such already existing Courts, one or more of them.

ii. Suppose no such powers provided, a course which would naturally be taken by any adversary of the proposed relief, would be the harassing with the expense and vexation inseparable from the existing system any or all of the persons, on the several occasions, concerned in the administration of this same relief.

iii. For this purpose, any one of all the several authorities who at present are authorized to issue a writ of Habeas Corpus would suffice.

iv. To secure against frustration the hereintended design, the mere frustration of the endeavour to prevent the disincarceration would not suffice. Were it not for the proposed punishment, the mere expense, necessary to the infliction of the expense and vexation on the persons concerned in the administering the relief, would naturally find but too many, who would be effectually disposed to take it upon themselves.

v. Under the checks hereinafter provided, much less probable will be seen to be any abuse of the Dispatch Court Judge’s power of incarceration, with the subsidiary powers, here provided, than would be the power of disincarceration, with the subsidiary powers of inflicting vexation, if left in the hands of the existing constituted authorities.

vi. Of such virtual appeal, the effect would be—instead of substituting the summary to the dilatory system, to add the one to the other: and thus render the course of procedure still more dilatory than the proposed relief found it.

vii. As to the nature of the addition,—this would depend upon the course of procedure pursued in the at present existing judicatory, by which, by the supposition, cognizance would, in this indirect way, have been taken of the proceedings of the Dispatch Court.

viii. In the state of things here proposed, no exercise or assumption of this power can have place, without appropriate warning: without drawing to it the attention, not only of the public at large, but of the superordinate authorities—legislative and executive.

ix. Exercised, as above, by the existing Judges,—exercised, on each occasion, is this same power, altogether without warning of the intention to exercise it. Nor, unless by a sort of miracle, has anybody out of doors any knowledge of what is to be done.

x. By malâ fide suitors—by dishonest suitors on both sides, at the suggestion of their learned advisers, it would, of course, and to a certainty, be employed:—by learned Judges, it would—but too naturally and probably—be countenanced and effectuated.

xi. By the here-proposed principle, how formidable soever may be the appearance presented by it to a superficial glance, no change whatever in the constitution will be produced—no power added to, or subtracted from, the Crown, or either House—no power given to the people at large.

xii. Necessary* to the keeping the door shut against all frustration, will, upon due examination be seen to be all this machinery:* but, what is most probable is—that, under the controul established by it, matters will go on so quietly, as to cause it to present itself to a hasty view as needless and superfluous.

Enactive.

Art. 98. Of all proceedings, in relation to this matter, before the body-adduction-mandate-issuing judicatory, the Dispatch Court Judge will so order matters that minutation and recordation shall be made, and the record kept in the office of the Registrar of the Dispatch Court.

Enactive.—Expository.

Art. 99. Included in this same self-extensive power of the Judge, is the power of making, from time to time, general regulations for the direction of the proceedings of this his own judicatory.

Ratiocinative.

Art. 99*. Of this arrangement, under the form of an extension applied to the power of the Judge, the effect is in truth a restriction: for, in respect of the exercise of it, a sort of moral obligation may be seen to have place. Supposing no such power, he would, on each occasion, do, without pre-announcement, whatsoever it were his pleasure to do.

ii. On the other hand, let this power be established, he will, in this case, in proportion to the exercise given to it, give to all persons concerned information of what they have to expect, and thus in a proportionate degree prevent disappointment.

iii. At the same time, by so doing, he will submit such his arrangements to the tribunal of public opinion; and thereby, to any imperfections that may have place in them, elicit the appropriate amendments, antecedently to any suffering on the part of individuals in consequence of those same imperfections.

Enactive.—Ratiocinative.

Art. 100. Strong, as above, being the mass of power conferred on the Dispatch Court Judge, correspondently strong will need to be the checks provided for security against mis-exercise of that same power. Hence the enactments which now follow.

For corruption, oppression, or extortion, the Judge may be punished as for a misdemeanour.

Mode of procedure, Information: filed ex officio by his Majesty’s Attorney-General, and not otherwise.*

Enactive.

Art. 101. At the trial, questions may be put to the defendant, as to any extraneous witness: in case of wilful falsehood, his punishment may be the same as that of a witness would be in case of perjury; from silent or irrelevant response, the Judge will draw inferences, as from any other portion of circumstantial evidence: all objection, on the ground of his being called upon (as the phrase is) to accuse himself, notwithstanding.

Ratiocinative.

Art 101*. Why thus elicit evidence from the lips of the defendant?

Answer.—Reasons:—

i. As to the Rule of Common Law, by which exclusion is put upon evidence from this source, for a demonstration at large of its absurdity in all cases, see the Rationale of Evidence.

ii. So, of its inconsistency: the exclusion having place where the evil and danger from the admission of the evidence in question amounts absolutely to nothing, and not having place where the evil is at its maximum.

iii. So, in respect of the exclusions, which have place, where the evidence is elicited in its best shape—namely, that of response to interrogation vivâ voce, subject to counter-interrogation on the spot,—and having not place where it is elicited in the worst possible shape—namely, that of affidavit evidence,—with time, in indefinite abundance, for premeditation, and exemption from the security which subjection to counter-interrogation affords, against falsehood, and against deception by means of it.

iv. Even were the exclusion proper in all other cases, it would not be so in this: forasmuch as—in this case, a man could not be subjected to the interrogation, without his own previous consent, as signified by the acceptance given by him to the office by which he will have been subjected to it.† —See further, Section XIX. Subsequential Evidence, &c.

SECTION VII.

PREHENSORS AND MESSENGERS.

Instructional.—Ratiocinative.

Art. I.—i. Prehensors,* —Messengers,—Consignees. Of the three different classes of functionaries so denominated, conjunct consideration will be seen to be necessary. They are, all three, so many channels through which is, and cannot but be, carried on between the Judge on the one part, and things and persons on the other part, that intercourse which is so indispensably and continually necessary to all exercise of his authority in relation to these its subject-matters. Presenting to view the mutual relations between all these several functionaries is the purpose of the following observations:—

ii. In an immediate way, with neither of these two subject-matters can any such intercourse be carried on otherwise than to a comparatively very narrow extent: more especially with things: for the remainder, necessary therefore is the intervention of intermediate functionaries. Under one or other of the following denominations will all these functionaries be found comprised.

iii. Of the intercourse of the Judge with a thing, the sole purpose in view is its forthcomingness: namely, for one or more of the purposes in Section VI. Judge’s Powers, art. 26, mentioned: of his intercourse with a person, an additional purpose is—information:—obtainment of evidence, or say information, without need of forthcomingness, either at the judgment-seat or anywhere else: information, at the hands of a person, who in this case is considered, and dealt with, in the character of an evidence-holder, or say, eventual informant.

iv. Necessary, in addition to the intervention of the Prehensor, becomes thus that of the secondly-mentioned sort of functionary—the Messenger.

v. So likewise, for producing, on the part of the person, without prehension, locomotion: namely, for the purpose of forthcomingness, whether at the Judgment-seat, or at any other place.

vi. If, for any one of the three purposes, for which, as per Section VI. Judge’s Powers, art. 26, prehension may require to be made—namely, the execution-effecting, the execution-securing, or the evidence-securing,—continuance in the possession of any functionary acting under the orders of the Judge, is necessary,—thereupon comes the demand for the thirdly-mentioned sort of functionary—the Consignee, or say In-trust-holder, as per Section VIII. art. 1.

vii. If it be to the class of things moveable that the subject-matter to be placed in the possession of the Consignee belongs,—an intermediate functionary whose service is necessary, is—a Prehensor: locomotion being in this case requisite.

viii. So likewise, if it be to the class of persons. If to the class of things immoveable, not:—locomotion being in this case impossible.

ix. So likewise, if to the class of things incorporeal: and for that same reason.

x. As to fitness:—for the three species of service in question, materially different for the most part are the sets of qualifications requisite: hence the need of functionaries in a corresponding degree different.

xi. On the part of a Prehensor,—qualifications requisite are,—in company with the appropriate instruction, strength of body and mind over and above the ordinary degree. True it is—that, for the prehension of a thing, were persons out of the question, for no such extraordinary qualifications would ever need have place: but, forasmuch as, for prehension of a thing, removal of obstruction opposed by persons may eventually be necessary,—hence, for the prehension of things, qualifications the same as for the prehension of persons will be necessary.

xii. On the part of a Messenger, no qualifications of any sort, in a degree above the most ordinary, are necessary.

xiii. But, for this branch of service, apt, in an extraordinary and peculiar degree, is the whole machinery of the Letter-post:—trustworthiness, punctuality, and cheapness being, as per art. 14, the attributes in a peculiar degree belonging to it.

xiv. On the part of a consignee, if the subject-matter of the consignment be a person, qualifications necessary will be those of a jailor: if a thing immoveable, or an aggregate of things moveable, the qualifications will be those requisite for custody and management, and will accordingly vary according to the nature of the things in relation to which the exercise of those two functions, or one of them, is necessary for the purpose in question, whether it be execution-effecting or execution-securing.

xv. Accordingly, any person who is fit to be a Prehensor is fit to be a Messenger. Not true, however, is it that every person who is fit to be a Prehensor is fit to be a Consignee, or say an In-trust-holder, to whose management or custody, things immoveable, or aggregates of things moveable, are consigned, or say confided.

So much for principals. Now as to deputes.

Under two former heads,—in the case of two above-mentioned functionaries—namely, the Judge and the Registrar,—mention has been made of the sort of functionaries styled Deputes; and of the sort of functionaries by whom it is fit that they should be located:—namely, their respective principals. But, in the case of a Prehensor, this fitness (it will be seen, as per art. 7*,) has not place.

Enactive.

Art. 2. Power to the Dispatch-Court Judge, to locate Prehensors, one or more, as need may arise. Form of the location instrument, as per Schedule, No. XIII.

Enactive.—Expositive.

Art. 3. Functions of a Prehensor, these:—

i. Of things and persons respectively, to make all such prehension and subsequent disposal, as the Dispatch Court Judge shall, by his appropriate mandates, have directed him to make: as to which, see Section VI. Judge’s Powers, &c. art. 15, 17, 18, 23, 24, 25, 26, 27.

ii. Between the Dispatch Court Judge and any other individual, as also between any one individual and any other,—to make communication by letter, or any other missive,—by his (the Prehensor’s) hands delivered,—in such manner as the Judge shall, by his appropriate mandate, have directed.

Enactive.

Art. 4. Salary of a Prehensor, [NA] a-year: payable in the same manner as (see Section II.) the salary of the Judge.

Art. 5. Dislocable at all times by the Judge will be every Prehensor. Reasons he will be expected to assign. Form of the dislocation instrument, as per Schedule, No. XIV.

Art. 6. So likewise, suspendible. Form of suspension instrument, as per Schedule, No. XV.

Art. 7. Power to the Judge, from time to time, to locate Prehensors occasional; to wit, either by the day, or for the occasion, as need shall arise. Form of the location instrument, as per Schedule, No. XVI.

Ratiocinative.

Art. 7*. Why, in a manner thus indefinite and variable, make provision for the service looked for at the hands of occasional Prehensors?

Answer.—Reasons:—

i. Somewhere or other, power of providing functionaries for the exercise of functions of this description, there must at all times be: and, altogether without limit is the number, the need of which may have place.

ii. To the Prehensor Principal, power thus unlimited cannot safely or consistently, as in the case of the Dispatch Court Registrar, be allotted: too strong to be at all times effectually resisted, would be the temptation to overstock the office with incumbents.

iii. Of the Judge’s mandates the efficiency, and thence in that respect his reputation, will, in the nature of the case, depend in some degree upon the aptitude of the choice in each instance made by him.

iv. Consequence,—in hands other than those of the Judge, power in this shape cannot, it should seem, with propriety be reposed.

Art. 8. Pay of a Prehensor occasional, whatsoever, at the time, or on the occasion in question, the Judge shall think fit to appoint.

Art. 9. Source of such pay, the purse of the party applying for, or having need of, the Prehensor’s appropriate service: in case of inability on his part, source the same as that provided in and by Section VI. Judges’ Powers, &c. art. 66, 67, 68, when the purpose is the obtainment of evidence.

Enactive.

Art. 10. For giving in detail expression to the powers and obligations attached to the situation of Prehensor,—power and obligation to the Judge, to draw up and cause to be printed, and from time to time to amend (causing them each time to be printed), regulations, for directing the exercise given by a Prehensor to such his functions. Name of the paper containing such regulation, the Prehensor’s Code.*

Art. 11. Attached to a printed copy of the Prehensor’s Code, under the signature of the locating Judge, will be the location instrument. At the time of location, delivered will be the paper, in open judicatory, into the hand of the Prehensor, by the locating Judge.

Art. 12. For wrong in any shape alleged to have been committed by a Prehensor as such, to no judicatory, other than that of the Dispatch Court Judge, shall recourse be suffered by him to be made.

Art. 13. Considered as an act of obstruction, as per Section VI. Judge’s Powers, art. 34,—so considered, and accordingly dealt with by the Dispatch Court Judge—will be any act by which such application shall have been made, or entertained and endeavoured to be effectuated.

Ratiocinative.

Art 13*. Reasons:—

i. Only for the purpose of obstruction—only with evil consciousness for its accompaniment—could any application to a Court acting under the regular system have place.

ii. In the Dispatch Court, heard and delivered it would be, at next to no expense.

iii. In a Westminster Hall Court,—not, but at an expense, having on each side, for its limit downwards, not so little as £20: upwards, how many hundreds it is impossible to say: expense in special pleading and appeal included, as they cannot but be.

Instructional.—Ratiocinative.

Art. 14.—i. Eminently apt for the purpose of Messenger’s service, is the class of functionaries employed by government in the conveyance of letters: styled in the aggregate the Letter-Post. Trustworthiness, punctuality, cheapness,—in a degree of perfection, absolute as well as comparative,—are all these desirable qualities possessed by the system carried on by it.

ii. Thus seated, not only would the weight of the burthen be in a prodigious degree lessened, but the whole of it would be taken off from the so-grievously-galled shoulders of the afflicted suitors.

iii. Were it not for the danger of abuse—of abuse, of which in such magnitude, and such multitude and variety of shapes, the regular system of procedure affords examples,—the party on whose account the missive requires to be delivered,—and by whom the mission of it will, in natural course, have been applied for,—might for this purpose be, as at present to so large an extent, his professional assistant is, the functionary on this ocsion employed.

iv. Though, to entrust to a person so circumstanced the execution of this trust, to the exclusion of all other persons, would, as above, be to expose the service to too great a danger,—yet, to no objection seems exposed the giving permission to the party, in person or by proxy, to accompany the government functionary: a course which in some cases, for securing the appropriate delivery, he will naturally be disposed to take.

Enactive.

Art. 15. To every Prehensor, whether permanent or occasional, belongs the aid-compelling function.†

Expositive.

Art. 16. By the Prehensor’s aid-compelling function, understand that, by the exercise of which, if need be, he calls for, and, by the fear of eventual punishment in case of noncompliance, uses his endeavour to obtain,—active assistance at the hands of each person so called upon, towards the enabling him to give execution and effect to the mandate, whatever it be, issued and directed to him, in such his capacity, by the Judge; or, to any general regulation, when any such there is, by which he is required to render his official service, in any shape, on any occasion, without waiting for any mandate, to be, on the individual occasion in question, issued by the Judge.

Enactive.—Ratiocinative.

Art. 17. To the end that, with all requisitions, made by a person lawfully exercising the authority of a Prehensor, compliance may at all times be given,—and, that to no requisitions, made by any person falsely pretending to be possessed of such authority, compliance may at any time be given—provided with an appropriate badge of office will be every Prehensor, whether permanent or occasional. By the choice, and under the direction, of the Judge of the Dispatch Court, will this symbolical instrument or apparatus, with any such component parts as shall have been deemed requisite to it, be at all times provided.

Enactive.—Instructional.

Art. 18. In respect of the description of the persons, on or over whom it shall be exercisable, to this authority there is no certain limit: on all persons whatsoever,—at his discretion, on his responsibility,—exercise will, on each occasion, be given to it.

Instructional.

Art. 19. For the guidance of such his discretion, rules prescribed to him are these which follow:

i. Only in case of need will any such aid be ever called for by him.

ii. Only to the extent of the need, will the call for it be made, or continued.

iii. In so far as, by the circumstances of the case, a choice of persons is afforded,—choice will in preference be made, of those, whose aid,—relation had to the public purpose in question,—promises to be most effectual: and, among them, of those to whom the assistance thus given promises to be least dangerous, and in other respects least burthensome; at the same time,—with reference to the evildoers, against whose unlawful opposition the aid is requisite,—least in danger of being productive of suffering, in quantity beyond what is needed.

Instructional.—Ratiocinative

Art. 20. Where the quantity of force needed is to such a degree considerable,—a party of regular military men promises to be in general preferable to any other: namely, as being more effectually under command, and on that account less in danger of producing evil beyond necessity, as well as of failing to fulfil the purpose. True it is—the smaller the quantity of such force necessary, and accordingly kept up, the better: but, the quantity of it being given,—the more extensive the application made of it to all useful purposes the better.

Enactive.

Art. 21. In case of non-compliance with an aid-compelling requisition made by a Prehensor, power to the Judge to impose, on each person so offending, a pecuniary mulct. In case of damage, in any shape, sustained in consequence of such non-compliance,—in compensation for such damage will this mulct, or such part of it as shall have been recovered, be applied: if there be no such damage, then will the whole of the mulct be transmitted by the Judge to the receipt of his Majesty’s Exchequer: for a form for the instrument of such transmission, see Schedule No. XVII. So likewise any such ulterior mulct as shall have been deemed fit to be imposed, over and above such sum as shall have been deemed requisite for compensation, as above.

Art. 22. In case of inability on the part of the offender to pay such mulct, or any part thereof,—power to the Judge, to commit him or her to prison for such term as,—by the apprehension of the like offence on the part of other persons exposed to the temptation of becoming offenders,—shall, in his judgment, afford an adequate promise of preventing them from becoming so: that is to say, for such term, the suffering wherefrom, in the breast of the said offender, shall, in the judgment of the Judge, be the equivalent of that which would have been produced in the breast of that same offender, by the forced payment of the sum in question, had he possessed it, or been able to obtain it.

Enactive.—Instructional.

Art. 23. The prison will naturally be—some prison in the metropolis, or within a few miles thereof. But, for reason assigned, any prison within the quondam kingdom of England may be employed by him in preference,—and also, for reason assigned, the prison at any time changed.

Instructional.—Ratiocinative.

Art. 24. On this occasion, the Judge will consider and inquire—whether it was ill will, or timidity, or a mixture of both, that such non-compliance had for its cause: inasmuch as, in the quantum of suffering proper to be inflicted by him, on the score and for the purpose of punishment, the difference may be, in an indefinite degree, considerable. In so far as timidity alone has been the cause,—scarcely on any other account than that of satisfaction in the shape of pecuniary compensation, will be subject the non-complying individual, as above, to pecuniary privation. Why? Because, generally speaking, in such case, suffering will, in the character of punishment, be useless. For the evil, the avoidance of which was sought by the non-compliance, may have been bodily suffering unlimited in magnitude: and that immediate; and in appearance, and perhaps in reality, certain: whereas, generally speaking, the evil apprehended in the shape of punishment for non-compliance will have been, and to the person called upon, have appeared to be, comparatively small, and that remote, and more or less uncertain.

Instructional.—Exemplificational.

Art. 25. If the individual, at whose hands the aid is required, be of the female sex,—timidity is that, which non-compliance will have for its commonly-probable, and thence, generally speaking, presumable cause. But if, from other circumstances it appears, that not timidity, but ill-will, was the cause,—then, in regard to punishment for non-compliance, small, if any, by the consideration of sex will be the difference to be made.

If, for example, by the purposed closing of a door, a person of the female sex, affords, to one who should have been prehended, the means of escape,—or, by information afforded, delivers into his hands, for the purpose of vengeance, a Prehensor, or any person occupied in lending aid to him.

Enactive.

Art. 26. In case of damage, to person or property, sustained by an individual in consequence of his being, or having been, occupied, in lending aid to a Prehensor, in the exercise of his authority,—power to the Judge, as per art. 21, to administer to the individual so damnified, compensation, at the charge of all persons by whose delinquency such harm was produced. As to this power of awarding compensation, considered in respect of the reasons on which it is grounded. See Section VI. Judge’s Powers, &c. art. 61* .

Art. 27. So likewise, to inflict, on any or every such wrong-doer, punishment,—in every instance, in which, and so far as, the suffering, produced by the obligation of making compensation, as above, would, in his judgment, fall short of being sufficient for punishment in respect of its subsequentially-preventive purpose: always remembering that,—supposing the amount to be in both cases the same,—the suffering produced by the obligation of parting with money or money’s-worth, payable into the purse of an adversary, will naturally be greater than if it were into the public purse.

Art. 28. In default of the obtainability of the matter of compensation from the property of delinquents, as per art. 26,—power to the Judge, to give to parties so damnified, drafts upon the Lords Commissioners of his Majesty’s Treasury: every such draft being accompanied with a brief report, expressive of the state of the case, of the several acts of delinquency committed, and of the damage by them severally or conjunctively produced, and the amount, in respect of which the pecuniary means of the several delinquents were found insufficient for the extraction of the penalties respectively assessed.

Art. 29. By their said Lordships,—if they see not any sufficient reason for suspecting excess on the part of the amount so drawn for,—it will accordingly be paid, within [six] days after sight: in the contrary case, their Lordships will, by a minute in the Treasury Book, and a copy thereof sent to the Judge,—express their desire that a copy of the minute of the whole transaction, as entered in the Register of the Dispatch Court, be transmitted to them: which received, they will either make, and communicate to the Registrar, appointment of the time or times on which the amount of such draft, after such deduction, if any, as they shall deem proper,—shall be paid, or give notice of disallowance in the London Gazette. Whatsoever is paid,—without fee at the expense of the individual it will be paid.

Art. 30. So, in case of loss of time to a considerable amount, or extraordinarily meritorious exertion, on the occasion of aid so lent by a person, whose means of subsistence are wholly or principally composed of the price of daily labour,—power to the Judge on special proof made and recorded, to cause reward, to a correspondent amount, to be administered to the individual in question, by order upon the Registrar: by whom it will be paid, and entry thereof made under the head of contingencies.*

Of such order,—copy will, at the requisition of the Registrar (which will accordingly be made,) be printed in the next London Gazette.

Instructional.

Art. 31. On this occasion, the Judge will be on his guard against needless service, rendered or required for the sake of the reward.

Instructional.—Ratiocinative.

Art. 32. Note—that, on the occasion of the provision thus made for rewards, care is taken by the Legislature, not to allot, by a fixed sum, to a service subject to indefinite variation in respect of magnitude and meritoriousness, reward, to an amount which, if so fixt, would in most cases be either insufficient or excessive. In the very nature of the case, a premium on contribution made to the infliction of punishment as for a crime, is, if fixt, a premium on contribution to the commission of that same crime: the more crimes a man produces, the more rewards he receives for causing them to be punished. In the existing state of things, this disastrous tendency is but too extensively seen ripened into act.†

SECTION VIII.

CONSIGNEES;* OR SAY, IN-TRUST-HOLDERS.

Expositive.

Art. 1. By an In-trust-holder, understand a functionary, to whose custody and care, with or without management, under the orders of the Judge, a thing or a person has been consigned, or say delivered, and thus confided; namely, by a prehensor, until the arrival—of the thing, in kind or in value, at its ultimate destination,—of the person at his ultimate destination,—on the occasion, and for the purposes, of the suit.

Art. 2. By a confidee, understand—a thing, or a person, so confided.

Instructional.

Art. 3. On the purposes, for which, on the occasion in question, the consignment is made, will depend—the description of the person or persons to whom, as above, in the capacity of In-trust-holders, the confidee is confided, or say intrusted: in this description,—qualifications and number, as in the articles hereinafter following, being included.

Art. 4. Of the ultimate purpose,—or say of the aggregate of all these purposes collectively taken,—the description is, the giving, in the completest manner and degree possible, consistently with the non-production of preponderant evil, execution and effect to such articles or clauses, in virtue of which, for the purpose of giving execution and effect to that part of the substantive law which is in question, termination may, in favour of whichsover side it be, require to be given to the suit.

Art. 5. As to things, of which—they being originally in the custody of the Judges of the existing judicatories in question, as per Section VI. art. 9, the value is purely relative,—either they will not need to be prehended, or if prehended, they will, in an immediate way, be delivered to, and placed in the custody of, the Registrar of the Dispatch Court. In relation to such things,—no demand for the service of an In-trust-holder will have place.

Art. 6. Of the sorts of things intrinsically valuable, by the nature of which a demand for the service of an In-trust-holder may have place,—some there are in relation to which it may happen that no demand for special management has place: nothing beyond safe custody. In the case of things of these sorts, so as the proposed In-trust-holder be in himself sufficiently trustworthy or by collateral security rendered so, what may happen to be the case, and, generally speaking, will be so, is—that, for no special qualification on the part of a proposed In-trust-holder is there any demand;—and that, for the due and adequate exercise of the functions belonging to the trust, a single In-trust-holder will be sufficient. Examples of things thus circumstanced are the following:—

• 1. Money to any amount.
• 2. A dwelling, furnished or unfurnished.

Art. 7. For the due and adequate exercise of the functions of an In-trust-holder—in relation to things or aggregates of things, with relation to which, demand for special and appropriate management has place,—correspondent demand for qualifications, in various groups, corresponding to the respective natures of such things, will in consequence have place. Examples are the following:—

i. Ground-husbandry profit-seeking concerns:

• 1. Agricultural.
• 2. Mining.
• 3. Fishing.

ii. Manufacturing profit-seeking concerns:

• 1. Manufactures by wholesale.
• 2. Handicraft businesses.

iii. Merely distributional profit-seeking concerns:

1. Wholesale trades, home, or say domestic.

2. Wholesale trades, foreign.

3. Retail trades.

4. Trade, ambulatory by water.

iv. A profit-seeking concern, having for its subject-matter a thing incorporeal:—source of profit,—the exclusive right to sell things of the species in question; this right being derived from—

• 1. The inventorship thereof; or
• 2. The fabricatorship; or,
• 3. The vendorship.

Example of the inventorship,—authorship of a literary or imitative work.*

Enactive.—Instructional.

Art. 8. On the occasion of the location of an In-trust-holder, it will be for the care of the Judge to look out for persons, one or more, possessed of appropriate qualifications, correspondent and adapted, as above, to the nature of the concern, whatsoever it may be:—hearing whatsoever may be learnt, in the shape either of proposal, or argumentation, from all parties interested: that is to say, in so far as distance, and thence danger of preponderant evil by delay, will admit.

Art. 9. So, to take into consideration the number of the In-trust-holders, whether it shall be one or more; and whether in the case of a concern which has divers branches, they shall be intrusted—all of them, to one hand or assemblage of hands, or one to one, another to another, and so on.

Art. 10. So, the exaction of security at the hands of In-trust-holders: in regard to each, whether it shall be exacted; and, if yes, in what shape: and,—whether security from within, or say ab intra, shall suffice,—or security from without, or say collateral, or ab extra, shall be added;—from within, that is to say, by eventual appropriate obligations, submitted to by the In-trust-holder himself: from without, that is to say, by such obligations submitted to by co-obligees, or say, in the present case, co-assecurators.

Art.11. So, the several appropriate functions, which, in relation to the things in question, may require to be exercised by such In-trust-holders respectively:—functions, namely,

i. As to things:—1. The procurative; 2. The conservative; 3. The applicative; 4. The reparative; 5. The eliminative.

ii. As to money:—1. The procurative; 2. The custoditive; 3. The applicative.

iii. As to things, money, persons, and occurrences:—1. The statistic; 2. The minutative and recordative.

iv. As to states of things, arrangements, and ordinances: the melioration-suggestive.*

Art. 12. So in regard to remuneration: namely, in the instance of each such In-trust-holder, whether any shall be received by him; and if yes, its quantity and its quality; or say how much, and in what shape.

Art. 13. In regard to the shape, it will be the Judge’s care, that in no instance it shall be such as to place his interest in a state of opposition to his duty. Examples of such opposition, these—

1. In In-trust-holder’s hands, money continuing in such quantity as to be capable of affording profit in the shape of interest.

Art. 14. So in regard to stock, in all shapes, as per art. 7: the Judge giving admission, and having, at all times, regard to suggestions by interessee, as per art. 8.

Art. 15. In and by the instrument of consignment, or say the consignment-effecting mandate, the Dispatch Court Judge will make mention of the purpose for which the transfer is made. As for instance,—

1. Purpose, management. Name of the instrument, the management-prescribing—or say directing—mandate. Form, as per Schedule No. XVIII.

2. Purpose, sale. Name of this his instrument, the sale-directing—or say prescribing—mandate. Form, as per Schedule No. XIX.

So, if for any other purpose.

Art. 16. Now, as to the case where the confidee is a person.—General heads under which the purposes, as per art. 4, may be ranked in this case, these:—

1. Remedial:—functions of the In-trust-holder in this case, those of a keeper.

2. Tutelary:—functions, those of a guardian.

3. Evidence-securing:—functions, those of a keeper.

Art. 17. General purpose remedial,—specific purposes, in this case, may be—

i.Preventive: Examples:—

1. Prevention of acts of force, having for their object obstruction to the exercise of any power belonging to the Dispatch Court Judge.

2. Prevention of evasion, from consignment made of the confidee to any In-trust-holder, for the purpose of confinement: restrictive the purpose may, in this respect, be termed.

ii.Suppressive: to wit, of negative delinquency in the shape of non-compliance with a mandate of the Judge:—ordering, for example, the transference—or say extradition—of a thing, as per articles following, in the character of a source of evidence, written or real;—or of a person in the character of an evidence-holder:—and, in each case, for the purpose of prehension, and delivery to an In-trust-holder; or, ordering indication to be made of a matter of fact, for the purpose of its being employed in evidence: in this case, compulsive is the denomination of the remedy: compulsion being the means by which, or say the mode in which it operates.

iii.Satisfactive: including the compensative. Applied to a thing, the remedy in this shape may be administered by extradition as above: applied to a person, it cannot be administered otherwise than by effecting extradition of a thing or things—valuable, as above—and delivery thereof, in kind or in value, as above.

iv.Punitive, or say subsequentially preventive: In-trust-holder, in this case,—keeper of a place of confinement: the confidee being placed under the care and custody of the In-trust-holder: namely, whether for the purpose of punishment thereby to be suffered, or for prevention of evasion of ulterior punishment in that or any other shape.

Art. 18. Subject-matters for the consideration of the Judge are in this case the following; namely—

i. The quantity of the suffering to be applied.

ii. The place, within which, or at which, by the In-trust-holder, the confidee shall be kept, or say confined.

iii. The time during which such confinement shall continue.

Art. 19. Of the suffering applied, the Judge will of course keep the quantity reduced to the smallest amount, consistent with the fulfilment of the special purpose, as per art. 17, with a view to which it is inflicted,—and with the non-production of preponderant evil in any shape.

Art. 20. As to the place, it may be either stationary or ambulatory.

Examples of the places when stationary, these:—

i. The house of the confidee himself.

ii. The house of a friend of the confidee: the occupier of the house praying for, or consenting to, the application thus made of it.

iii.A lock-up-house: that is to say—a house, in which, by an In-trust-holder, by whom such his business is carried on—professionally and for profit, confidees are lodged with or without board, in a state of confinement.*

iv. Failing the above places, in case of necessity, a prison.

Ratiocinative.

Art. 20*. Why this power of inflicting punishment on the innocent?

Answer.—Reasons:—

i. In the case here in question, preponderant suffering to the imprisoned individual, none: to parties, one or more, for want of the evidence, suffering in a pecuniary shape to the magnitude of which no limits can be assignable.

ii. Of suppression of true evidence the maleficent effects may be as great as those of falsification of true evidence or fabrication of false: and suppression of evidence is, if wilful, an offence against justice.

iii. Punishment is not, in this case, a proper appellation. For divers purposes other than punishment is suffering in this same shape habitually produced in English law, and in the laws of civilized nations in general: namely, the purpose of prevention and of suppression, as applied to maleficent acts of all sorts. Punishment is one out of the four species of remedies employable in the cure of the disorder called delinquency: the three others are—1. The preventive; 2. The suppressive; 3. The satisfactive; The 4th is the punitive:—the preventive, that is to say, the antecedently preventive; the punitive having for its object the prevention of subsequential offences, and this being the only purpose for which the application of it is justifiable.

iv. Application of imprisonment for this very purpose, is not without example in English practice; nor are the examples rare.

v. This, too, without any of that attention which is here directed to be applied for the purpose of minimizing the suffering: and without either receipt or expectation of such attention, to imprisonment individuals purposely subject themselves—the evils of it being regarded by them as less than those to which, if out of prison, they would be subjected by indigence. See Section VI. Judge’s Powers.

Enactive.—Instructional.

Art. 21. Instead of stationary, as in the above four cases,—power to the Judge—to render the restriction as to place,—and thence the condition of the confidee in respect of rest and motion, ambulatory:† the course of his locomotion being all the while such as is most agreeable to him; the confidee going wheresoever he pleases, so as he be all the while in the custody of the In-trust-holder, or some person employed on the occasion by him, the In-trust-holder being responsible for his forthcomingness:—and subject always to all such mandates, restrictive, or even compulsive, as for any of the above desirable purposes, shall have been delivered by, or by order of, the Judge.

Art. 22. In every one of these cases—for prevention of evasion, security will, if needful, be exacted by the Judge, as per art 10, according to the circumstances of the individuals interested in each individual case:—regard being had to the two antagonizing objects of consideration; namely, the evil producible by evasion, and the good produced by reducing to its minimum the quantity of suffering inflicted for the prevention of that same evil.

Instructional.—Ratiocinative.—Exemplificative.

Art. 23. Minimized may be by these means the expense and vexation produced under and by the existing system, in the view of providing security for the forthcoming of the persons in question:—extinguished, for example, the abuses following:—

i. The bailing system* with its expense, delay, and vexation, as at present carried on.

ii. For transfer of real property, compulsion† applied to a party, to cause him to do that which, without agency in any shape on his part, might be done by the Judge: in which case, lodged in the same party’s hands, is a sort of negative applicable to the appropriate exercise of the judicial power in question, and capable not only of obstructing, but of frustrating it.

Enactive.—Expositive.

Art. 24.—II. General purpose the second, tutelary. Specific purposes correspond to the several efficient causes of the demand for the service of the In-trust-holder, which are the following:—

i. Intellectual weakness by reason of immaturity of age, or say, in one word, minority. Specific appellative of the In-trust-holder, in this case, guardian: of the confidee, ward.

ii. Intellectual weakness, by reason of mental derangement not referable to age. Specific appellative of the In-trust-holder in this case, committee; of the confidee, idiot, or lunatic: idiot, when the weakness is regarded as having had its commencement at birth, and as being thence incurable: lunatic, when regarded as having had its commencement at some point of time posterior to birth: and thence as curable or incurable as it may happen.

iii. Intellectual weakness, by reason of longevity: in which case it has been denominated caducity.

On this score, under the existing system, no such consignment is known to have had place: no appellative consequently in use, for the designation—either of an In-trust-holder or of a confidee. Appellatives that might here be applied are—to the In-trust-holder, curator; to the confidee, the over-aged.‡

Art. 25. Every minor, if any such there be, who, having father or mother living, is, in contrariety to the declared wishes of such father or mother, in wardship, under the Lord High Chancellor,—under the notion of the relative inaptitude of such his or her parent on the score of persuasion in matters of religion,—the Judge will emancipate from such guardianship; restoring the ward to the guardianship of the father; or, if the father be deceased, to that of the mother, or of any person by him or her appointed guardian, as the case may be.

Ratiocinative.

Art. 25*.—i. For if, on this score, a public functionary had it in his power to take a child out of the care of his natural guardian, or of any person by him or her appointed as guardian,—a power of persecution would thus be possessed, the peace of families exposed to disturbance, and, by successive Chancellors, so many mutually opposite persuasions might be endeavoured to be implanted in the same infant minds.

ii. So likewise, even if on the score of morals.

iii. If, throughout the whole community, in the case of all minors under natural or naturally appointed guardianship, as above—suits on this ground were liable to be instituted,—no end would there be to the number of such suits, nor to the length of them respectively.

iv. Supposing the institution of guardianship in this case beneficial, no sufficient reason can be assigned why the benefit should, by law, be conceded or denied, according to pecuniary circumstances; conceded to the rich, because rich; denied to the poor, because poor.∥

Enactive.—Instructional.

Art. 26.—III. General purpose the third, evidence-securing.—Case I. Confidee, a thing. Of a thing, considered in the character of a source of evidence,—prehension may require to be made, for either of the three purposes following:—

i. Securing its forthcomingness.

ii. Securing it against changes liable to be made in its appearance for the purpose of deception; or say, against forgery of real evidence.

iii. Securing it against change with the like effect, though without any such sinister purpose; whether such change be the effect of a purely natural cause, or of want of attention to prevent it.

Instructional

Art. 27. In this case, the Judge will have to consider—whether, of the change of hands,—loss or detriment, in any shape, to any person, will be a consequence: and, if yes, whether to place the thing in the hands of an In-trust-holder (making, at the charge of the party requiring the consignment, compensation for such detriment)—or, in consideration of such detriment, leaving it in the hands in which it was found.

Enactive.—Instructional.

Art. 28.—Case II. Confidee, a person.—For the purpose of evidence,—to prevent the deperition thereof, power is hereby given to the Judge to place, in quality of an Evidence-holder, a person, in case of need, in the condition of a Confidee, in the custody of an In-trust-holder:—that is to say, if in his (the Judge’s) opinion the importance of the suit to the parties, and the importance of the expected evidence in relation to the suit, are such as to afford an adequate compensation for the inconvenience about to result from the restraint.

Enactive.—Instructional.

Art. 29. In this case, of the costs of such consignment, including adequate compensation to the confidee for whatsoever inconvenience has in any shape been produced by the consignment,—that is to say, of the burthen of the cost,—distribution will be made between the parties, regard being had to their respective pecuniary circumstances.

Enactive.

Art. 30. By the Judge, an In-trust-holder of a thing or money may be—1. Located; 2. Suspended; 3. Dislocated; 4. Relocated. This, toties quoties. So, an Intrust-holder of a person.

Art. 31. For vexatious application made against an In-trust-holder, compensation may be made, or punishment inflicted.

SECTION IX.

GROUNDS OF DECISION FOR THE DISPATCH COURT JUDGE.

Instructional.—Expositive.

Art. 1. Of every suit, the subject-matter of contestation is either—1. Matter of law; 2. Matter of fact; or, 3. Both together.

Enactive.

Art. 2. So far as regards the matter of law, every decision of the Dispatch Court Judge will have for its ground the non-disappointment principle,—or say, the disappointment-minimizing, or expectation-fulfilling, principle.*

Instructional.—Expositive.

Art. 3. Correspondent to the disappointment-minimizing principle is the following rule, to which it makes reference. On every occasion, in so far as benefit in any shape is the subject-matter of dispute, the question being, to which of a number of parties the possession, present or future, in whole or in part, shall be adjudged,—the manner in which for that purpose disposition will be made of it, is that by which, among all the interessees taken together, least disappointment will be produced.†

Art. 4. For the purpose of determining, as to the arrangement in question, whether it would be in contrariety to the non-disappointment principle, the Judge will consider within himself, whether, if the case were his own, if that same arrangement took place, any such uneasy sensation as that expressed by the word disappointment would thereby have been produced in his breast.

Art. 5. For the purpose of determining, as between any two arrangements, which of them would be most, which least, conformable to the non-disappointment principle, the Judge will consider within himself, by which of the two the greatest, by which the least, pain of disappointment would be produced, as above, in his breast.

Art. 6. For the purpose of determining the several arrangements which the greatest-happiness principle requires to be established in the several parts of the field of law, various other subordinate principles will have to be employed. But this is the only one which by his own authority the Equity Dispatch Court Judge can, consistently with that same all-ruling and master principle, make application of; for the applications made of the several others respectively, fresh enactments will be requisite and necessary.

Enactive.—Instructional.

Art. 7. To no decision or rule in force, or supposed so to be, in any other judicatory, at the time when the question comes before him for decision,—to no practice or dictum of any such judicatory,—will the Dispatch Court Judge pay any regard. Referring to this article, he will reprimand and stop from proceeding in this course any person by whom in argument any such irrelevant and inapplicable matter shall have been introduced.*

Ratiocinative.

Art. 7*. Reasons, these:—

i. Be the arrangement what it may, by whomsoever it is declared to be contrary to every principle of justice, or contrary to the first principles of justice, or contrary to justice, it is thereby acknowledged to be unfit to have place.

ii. Next in importance to the rule which prescribes maximization of happiness on the part of interessees, is the rule which prescribes minimization of disappointment on their part.

iii. Conformable to the non-disappointment principle, any such rule or decision as above would be useless: unconformable, it would be maleficent.

iv. Consistent with one another are all arrangements rightly deduced from the non-disappointment principle: completely inconsistent with one another are many of the rules and decisions listened and conformed to by the existing Equity Courts.

v. Not more hostile to the rules and decisions of the existing Equity Courts can be any arrangements deduced from the non-disappointment principle, than are to one another many of the existing rules and decisions of those same Courts. Witness those pronounced on the subject of last wills.†

vi. Not worse nor otherwise dealt with will thus be the rules and decisions of the existing Equity Courts by the Equity Dispatch Court, than by those same Equity Courts, without any the least reserve, are those of the several Common-Law Courts and those of the several Ecclesiastical Courts throughout a great part of the extent of the field of jurisdiction occupied by these same Equity Courts. If it is, or ever was fit, that the rules of one Court should, by another Court established in a dark age, be overruled, why not by one established in a more enlightened as well as in a less enlightened age?

vii.Ex post facto arrangements, as well as contrary to the non-disappointment principle, are both those made by the existing Equity Courts, and all those that are grounded on the Judge-made and so-called unwritten law by the Common-Law Courts, and the Ecclesiastical-Law Courts, and Admiralty Courts: but most scandalously inconsistent with that exclusively defensible principle—the non-disappointment principle—are the rules and decisions of the existing Equity Courts; as well as with the profession included in the import of the term Equity: intimation being thereby meant to be conveyed of a better sort of justice.

viii. Contrary to acts of Parliament are various of the rules and decisions, application of which is made by the existing Equity Courts: witness those on the subject of the registration of deeds.

ix. Avowedly in contrariety to the enactments of the Legislature, may be seen rules and decisions of the Equity Courts: witness the instances brought to view in the tract intituled “Indications respecting Lord Eldon,” in the miscellany intituled “Official Aptitude Maximized—Expense Minimized.” (V. 348.)

x. By the exclusion put upon all mention of the rules and decisions of the existing Equity Courts, saved will be the prodigious quantity of time and expense employed in the reference to them in the existing practice.

Instructional.

Art. 8. Of interpretation in cases of doubt, applied to post-obituary dispositions,—principles applicable, these:—

i.Non-disappointment, or say disappointment-preventing or minimizing principle.

ii. Where and in so far as this principle has no application, the benefit-maximizing principle.

iii. When neither the disappointment-minimizing nor the benefit-maximizing principle are applicable, the lot-employing principle;—rather than by litiscontestation applying the money, part of it, to the use of lawyers in sheer waste: for example, in the scribbling of useless writings, or partly in travelling.

iv. In the first instance,—i. e. antecedently to application made of the benefit-maximizing principle, apply the lot-employing principle, as being the simplest in its operation, and saving the property from being wasted in the purchase of lawyers’ service, useless witnesses, and journeys of evidence-holders: this done, then the Judge will determine whether the inequalities of fortune on the part of co-claimants are sufficiently great to warrant the application of the benefit-maximizing principle.

v. In cases in which no one of the above-mentioned principles is applicable, give the matter in dispute to government for the benefit of the whole community.

vi. Determine to what degree of remoteness in relationship, expectation of post-obituary acquisition shall be considered as extending: and this in the two several cases of existence and non-existence of amicable intercourse betwixt the defunct and the living:

1. Means of simplification, or say simplicity-effecting arrangements, proposable as aplicable to post-obituary dispositions:—

i. Applying to the subject-matter of property—

Abolition of the distinction between real and personal property.

ii. Applying to the judicatories having cognizance of contestation in relation to those same subject-matters of property—

Abolition of all sorts of judicatories except one: giving to one and the same sort of judicatory (exceptions excepted) jurisdiction in all sorts of cases.

2. An example this, of the distribution capable of being made of the subject-matter of legal arrangements for the purpose of co-operation in codification.*

3. Note, in this point of view, that of post-obituary and introvival, or say intervival disposition, the subject-matter is or may be the same: namely (exceptions excepted,) the aggregate mass of the objects of general desire, including the matter of wealth in all its ramifications.

vii. Modes of division in cases in which no ground can be found for giving the subject-matter in question to one of two contending parties, to the exclusion of the other, these:—

1. Division into two equal shares,—the assumption being, that the right does belong either to the one or to the other beyond doubt, no third person having any ground of title to it.

2. Lot, without division;—according to the result of the lottery, the subject-matter going in totality either to the one or the other.

Of these two, the mode of division seems the preferable one. Ground of this opinion, this:—what cannot but be admitted is, that in the breast of each one of the two competitors, the pain of disappointment cannot fail to have place. On the other hand, what is supposed and assumed to be true is, that the sum of the pain in the case of division will not be so great as the sum of the pain in the case of non-division; and conversely, the sum of the pleasure produced in the case of division will be greater than the sum of the pain in case of non-division.†

SECTION X.‡

SUITS’ COMPARATIVE SUITABLENESS; AND ORDER OF COGNIZANCE.

Instructional.

Art. 1. Of the Dispatch Court the institution has in view two purposes:—1. Main purpose, introductorily to the establishment of a proposed all-comprehensive system of judicial procedure, having for its object the minimization of delay, expense, vexation, misdecision, and denial of justice, together with the correspondently-comprehensive judiciary establishment necessary to the application of it;—the affording, without the expense which would be necessitated by the establishment of the system in the first instance, an experimental proof of the conduciveness of the procedure system to such its beneficent end.—2. Collateral purpose;—by means of this experiment, affording relief to a number as large as conveniently may be, of the persons labouring under the pressure of those same evils, in a species of judicatory the procedure of which is pregnant with them in the most signal abundance.

Instructional.—Expositive.

Art. 2. Subjects of consideration on this occasion, these:—

i. From what Court or Courts suits shall be transferred to the Dispatch Court.

ii. From such Court or Courts, what shall be the suits so transferred.

iii. The suits so transferred, what shall be the order in which cognizance shall be taken of them by the Dispatch Court Judge.

Enactive.—Expositive.

Art. 3. As to the Court or Courts:—From the High Court of Chancery alone shall suits be transferred to the Dispatch Court;—from the High Court of Chancery, including the Vice-Chancellor’s Court, and the Master of the Rolls’ Court.

Ratiocinative.

Art. 4. Not from the Equity side of the Court of Exchequer. For if of suits more than one, hearing takes place, they cannot any two of them be heard at the same moment: and if not heard at the same moment, they must be heard in some order one after another: and if so heard one after another, a determination as to what shall be the order in which they are to be heard, must be made beforehand. If from one Court alone they are received, a predetermination in this sort is capable of being made; but if it were from Courts more than one that they were designed to be received, no such determination does the nature of the case admit of.

Enactive.

Art. 5. The Dispatch Court Judge will not, in any stage of the proceedings, take in hand any suit which has been instituted by a Commission of Bankruptcy.

Ratiocinative.

Art. 5*. Why not? Answer.—Reason: So great may be the quantity of business to be done in a single suit, that it might fill up the time of the Judge to such a degree as to keep back for and during an indefinite length of time Equity Court suits in indefinite number.

Enactive.

Art. 6. A Petition, which in the case of a suit commenced by a Commission of Bankruptcy, is in present practice presented to the Lord Chancellor, will accordingly be addressed to the Lord Chancellor, and not to the Dispatch Court Judge.

Enactive.

Art. 7. The Dispatch Court Judge will not, in any stage of the suit, take in hand any proceeding which has been commenced in the Insolvency Court.

Ratiocinative.

Art. 7. Reason: The same as in the case of a proceeding commenced by a Commission of Bankruptcy.

Enactive.

Art. 8. Exception excepted, every proceeding, the commencement of which has taken place, either by a Commission of Bankruptcy, or in an Insolvency Court, will be carried on in the same Courts respectively as at present, anything in this present Act notwithstanding.

Enactive.

Art. 9. Exception is where, for giving execution and effect in a suit which, having taken its commencement in the Equity Court, has been transferred into the Dispatch Court, it is necessary that by the Dispatch Court exercise should be given to powers operating on subject-matters on which those same Courts have either of them begun to operate.

Exemplificative.

Art. 10. Of these powers, examples are the following:—

i. Power of prehending and disposing of property which at the time of the transference was in the hands of either of those same Courts.

ii. Power of prehending and putting to use any written source of evidence, which at that time was or has since come to be in the possession of either of those same Courts.

Enactive.

Art. 11. For giving execution and effect to the above-mentioned powers, the powers exercisable by the Dispatch Court, in relation to persons and things belonging to the above-mentioned Courts, are the same as those exercisable over and in relation to persons and things belonging to the Equity Courts, as per Section VI. Judge’s Powers.*

Enactive.—Instructional.

Art. 12. In manner following will the suits transferred, and the order in which cognizance is taken of them, be determined:—

i. Issued will be, on the [NA] day of [NA] next, his Majesty’s Commission, by which appointment will be made of the Dispatch Court Judge.

ii. So soon as he has received his Commission, the Dispatch Court Judge will issue his mandates, addressed to the needful officers of the several Equity Courts, requiring them forthwith to make returns comprising the information following:—namely,

• 1. Names of the several suits, the first proceedings of which bear date in any part of the several years from the year of our Lord 1810 to the present year, both inclusive.
• 2. In a column headed by the word concluded, as to such in relation to which it can be ascertained that they have been concluded, information of the day on which such conclusion took place; and in a third column, the species of document by which it appears that the same took place; and in a fourth column, the names of the last proceedings that have been had in those in relation to which it does not appear that the conclusion thereof has taken place.
• 3. Name of the species of suit, in so far as the same can be ascertained.
• 4. Names and official residences of the several town solicitors on the plaintiff’s side in the several suits.

Ratiocinative.

Art. 12*. As the Bill cannot pass without the approbation of both Houses, one or other House might be depended upon for the spontaneous procurement of the just-mentioned information. But as it may happen that, with reference to the purpose for which it is hereby required, the information so obtained may fall more or less short of being complete,—hence the necessity of a provision to this effect for the supply of it: the rather, as the demand for it will be more constantly and assuredly under the eye of the Dispatch Court Judge, than under that of either House of Parliament: and may arise at times at which those same Houses respectively are not sitting.†

Enactive.

Art. 13.—iii. Into the Dispatch Court will be transferred, in the first place, all suits which will have taken their commencement within [twenty] years, reckoning back from the day on which his Majesty’s Commission to the Dispatch Court Judge is issued.

Art. 14.—iv. On that same day, by an advertisement in the London Gazette, a day will be appointed before which all suits, if any such there be, the commencement of which took place at a date anterior to those same [twenty] years, shall be so transferred. Name of these suits, the superannuated suits. Name of the before-mentioned suits, the primarily-appointed, or say non-superannuated suits.

Art. 15.—v. The two classes of suits,—primarily-appointed and superannuated, or say subsequentially appointed,—being added together in one list, the order in which the total number of them shall come in for cognizance will be determined. Name of the just-mentioned list, the total, or say the aggregate list of the so-transferred suits.

Ratiocinative.

Art. 15*. Why these suits alone,—not all such as are in pendency?—Answer: Some sorts of suits there are, in relation to which it is not possible to say for and during what length of time they may have been in pendency: in which case, no year later than the first of the proceedings of which any record of the Court is extant, could be pitched upon as that in which commencement shall be given to the series. Here then would be, in vast proportion to the useful, a quantity of useless matter, in the supplying of which a correspondent quantity of time and labour would have to be consumed.

Enactive.

Art. 16. As to the order in which by the Dispatch Court Judge cognizance shall be taken of the suits transferred to it from the Equity Courts, if it be not determined, as per art.—,* by the order in which Dispatch-Court-praying petitions are received, it will be determined by lot.

Ratiocinative.

Art. 16. Question: Why by lot? Answer: For the reasons following:—

i. Of the suits included in the above-mentioned period, the number will be a determinate one. But unless, and until the number of those to which anterior points of time gave commencement is also a determinate one, the total number of those to which admission to the Dispatch Court is to be given, will remain undetermined.

ii. Even supposing this total number in any way determined, still the order in which cognizance is to be taken of them will remain undetermined. For, though by the official books the day on which each suit took its commencement would be indicated, still by this circumstance the order of cognizance will not be determined. For, though the order of the days in the year is a determinate one, still as between the suits that took their commencement all of them on the same day, of the order in which they did so, no indication will by this means be afforded; nor in the nature of the case can be afforded by any other means than lot.

iii. Lot will thus far be employed of necessity: longevity, the ordinary and thence the most obvious one, is by the uncertainty of the influx of suits of anterior date prevented from being employed throughout; nor, on consideration, will any decisive reason, it is believed, be found why it is desirable that it should be.

iv. It may be thought that the quantity of the suffering from the non-termination of the suit is the proper standard by reference to which precedence should be settled. But upon closer consideration it will be found, that from no possible data, singly or collectively taken, is this quantity ascertainable.—1. Value of the subject-matter in contestation; 2. Expense of the suit; 3. Longevity of the suit;—not from any one of these circumstances, nor from all of them together. Of every one of these circumstances, not to the absolute quantity is that of the suffering proportionable, but to the relative;—relation had to the individual’s pecuniary circumstances: and thence, in the case of each individual, different, not to speak of the universally unascertainable quantity of individual sensibility.

1. In cases to a great extent, the value of the subject-matter of contestation will not, even at the termination of the suit, have been ascertainable: as, for instance, all those in which the suit has for its object the applying to wrong the preventive remedy.

2. As to the expense of the suit,—it is composed partly of the money already at the then present time disbursed, partly of that remaining about to be disbursed:—a quantity, of which in most cases the ascertainment would be impossible.

3. As to the longevity,—it is composed partly of the past duration, partly of the eventually future duration; that is to say, of that which in the case of non-transference would take place; and unascertainable would be, not only in most cases the eventually future, but even in many instances the past:—namely, by reason of the impossibility of ascertaining the day or time of commencement, without going back to such a number of years as would render the delay productive of burthen to an amount preponderant over the benefit.*

Enactive.—Instructional.

Art. 17. Mode which, for determining the order of priority as between suit and suit among suits of the same class, will on the present occasion be employed,—mode of proceeding by which choice is excluded, and to all eyes shown to be so,—this. Square tickets of card paper,—all of them of exactly the same form and size,—one for each suit, being provided, and on each of them the name of a different suit, under the care of the Registrar, inscribed,—a square box or other receptacle, deep and wide enough to receive a human arm is provided:—Name of a ticket of this sort, a priority-indicating ticket, or for shortness, a priority ticket:—and into this receptacle, in open court, by the Registrar, in the sight of all present, these tickets are successively dropped. This done, upon this same receptacle, a cover, composed of a piece of cloth, with a slit in it, being temporarily fastened, and the receptacle with such its contents sufficiently shaken, the tickets are successively drawn out one by one; and, in the order of their succession copied upon a sheet of paper prepared for that purpose:—arm thus employed (suppose) that of a child too young to be susceptible of instruction for a sinister purpose.

Enactive.—Expositive.

Art. 18. Of the several superannuated suits, such if any as remain untransferred, and thence not included in the above mentioned lottery, will be removed into the Court of Exchequer for continuance and termination in manner hereinafter mentioned.

Art. 19. Provided always, that any such untransferred superannuated suit, instead of being so removed into the Exchequer Court, may, on condition that for the purpose of decision cognizance shall not be taken of it till after those in relation to which the order of precedence has been so determined as aforesaid, be transferred to the Dispatch Court; and for effecting such transference, a petition to the Dispatch Court Judge from any one of the plaintiffs, if more than one, will suffice. Name of such petition, a Transference Petition. Form of it as per Schedule No. XX.

Art. 20. As to suits which being to be commenced at a time subsequential to such transference, would otherwise have been brought before the Court of Chancery,—during the continuance of the Dispatch Court they will be brought before the Court of Exchequer.

Art. 21. Provided always, that should it have pleased his Majesty to appoint another Judge for the cognizance of such subsequential Equity suits, they will, instead of being brought before the Court of Exchequer, be brought before such subsequentially-appointed Dispatch Court Judge: and for the appointment of such supplemental Judge, he proceeding in the same manner as the originally-appointed Dispatch Court Judge, power to his Majesty is hereby given.

Enactive.—Expositive.

Art. 22. Neither from the originally-instituted Dispatch Court,—nor from the subsequentially-instituted Dispatch Court, should any such be instituted,—is any appeal appointed. Should it appear to any member of either House of Parliament, that the decision pronounced by the Judge of either Court is not according to justice, he will be at liberty to move for leave to bring in a Bill for the establishment of a different rule for the time to come.

Art. 23. Provided always, that for corruption, oppression, extortion, and wilful, or say malâ fide misdecision, the Dispatch Court Judge may, by his Majesty’s Attorney, be prosecuted by ex officio information in the Court of King’s Bench: and in case of conviction of such wilful misdecision, the decree shall be reversed, and another decree substituted by the successor of the so-convicted Judge. See Section VI., Judge’s Powers, art. 100.

Art. 24. Should it appear, that by the two aforesaid Judges, decrees have been made from which two conflicting rules are likely to be deduced, remedy will be applied by act of Parliament, in the same manner as by art. 15.

Ratiocinative.

Art. 25. From the non-institution of appeal, or say the substitution of an appeal in this mode for appeal to the House of Lords, no preponderant inconvenience will on any just ground be apprehendible. By the institution of appeal to the House of Lords, the disease, in respect of the delay and expense (not to speak of danger of misdecision,) would be continued in a great part of its force. So would it if sent to the existing Court of Exchequer Chamber, composed of eight Judges, or the Court composed of the twelve Judges: besides that in either of these cases it would have to be decided upon the only principles with which they are acquainted, and to which they are naturally attached—principles adverse to that of this Act.

SECTION XI.

AUXILIARY JUDGES AND ACCOUNTANTS.

Enactive.

Art. 1. For the performance of various incidental operations of Equity Court procedure, when transferred to the Dispatch Court, instituted hereby, in addition to the Dispatch Court Judge and his Deputes, are a class of Judges subordinate to him, and acting under his direction, by the name of Auxiliary Dispatch Court Judges, or say, Dispatch Court Judges Auxiliary, with their several Deputes.

Instructional.—Ratiocinative.

Art. 2. On this occasion, as on every other, desirable results are the following:—

i. That delay, expense, and vexation, should be minimized.

ii. That to this end, appropriate aptitude in all its branches be maximized.

iii. That, for the sake of appropriate moral aptitude, matters be so ordered that no person be a gainer by needless addition to expense or delay.

iv. That, on the contrary, such persons, as many as may be, may by any needless expense or delay occasioned by them respectively, be losers.

v. That, in respect of the quantum, the remuneration be as small as it can be made, without preponderant evil, by detriment to the appropriate aptitude of the functionaries to whom it is allotted.

vi. That, in respect of the shape in which it is administered, for the sake of appropriate intellectual aptitude, cognitional and judicial, and appropriate active aptitude, matters may be so ordered, that by fear of public opinion all persons absolutely or comparatively inapt in those respects, be deterred or prevented from accepting official situations.

vii. So, all persons in quality of locators, from locating them in those several situations.

viii. That on the part of functionaries thus located, emulation may have place; that is to say, competition for remuneratory approbation at the hands of the Public Opinion Tribunal:—that judicial authority, in relation to which, the popular or moral sanction is the legislative.

ix. That no suit should by its complexity, and thence by its lengthiness, put a stoppage beyond what is unpreventible, to the dispatch of others more than one.

x. That for minimization of delay and expense conjoined with each other, the supply of judicial functionaries may be elastic;—always sufficient for the maximum of dispatch, never more than sufficient;—at all times fitting itself to the quantity of the business by which the demand is produced.

xi. That, by means of the correspondent number of subordinate judges, of the various operations which have need to be performed in the course of the same suit, as many as possible may be carried on at the same time.

xii. That the chain of causes and effects may thus be organized in such sort as to maximize the probability of the production of the several desirable results, each of them in the highest degree possible.

Art. 3. For accomplishing by the above means the above objects, the arrangements that are provided will here be seen.

In regard to the minimization of delay and expense, the accomplishment of the object will depend partly upon the state of mind on the part of the operating functionary—partly on the state of things on the part of the subject-matter operated upon. In relation to minds, that which presented itself as capable of being done, has already been brought to view in the several preceding Sections. Remains to be seen, what is capable of being done in relation to the subject-matter to be operated upon;—namely, the aggregate mass of the matter belonging to the several suits which the Dispatch Court Judge will at the time of his appointment find depending in the several Equity Courts. “Many hands make light work,” says the proverbial rule: corresponding principle, the distribution principle.

Art. 4. Under the guidance of this principle, for the assistance of the Judge hitherto designed by the appellation of the Dispatch Court Judge, is provided a set of Judges under the name of Auxiliary Judges:—for his assistance, and thence operating, to wit, on different parts of the matter of the same suit at the same time as he:—for his assistance, and thence operating under him and by his direction. Thus, then, over and above the stock of machinery already brought to view, comes to be brought to view an additional and different stock, under the name of Auxiliary Judges, with their et ceteras.

Art. 5. But whatsoever were the objects in view, and aimed at in the case of the original machinery, the same will have place in regard to the case of the supplementary machinery. With respect to the quantum of the supply, always enough, and never more than enough, was the quantum aimed at and endeavoured to be provided in the case of the original machinery: the same is the description of the quantum aimed at and endeavoured to be provided in the case of the supplemental machinery:—and, to speak more particularly, for the Dispatch Court Judge have been provided his Deputes, for the Auxiliary Judges, be they ever so many, must be provided their respective Deputes. Thus then, and for the purpose of this close fitting, as in the case of the fabled seven-league boots, already alluded to, the same elasticity, suppleness and pliancy, will be needed in this case as in that.

Art. 6. Thus much as to the quantity of the fresh supply. So as to quality,—appropriate aptitude in all its four branches. As to the means of producing it, and instruments to be provided for the production of it, together with the manner in which application requires to be made of those same instruments, here, as there, the instrument is the matter of reward—the active, the moving force, by which application is made of it, remuneration: here, as there, the direction and mode in which application is made of it, such as will accelerate the motion of the instruments it is applied to, and, in a word, the whole moving part of the machinery,—not retard it. Here, as before, this will be determined by the terms and conditions on which they operate, and the publicity of those same operations,—upon the force with which the voice of public opinion operates upon them, in such sort as to secure the rectitude of the direction in which, and the velocity with which they operate.

Art. 7. For aught that as yet has appeared no reason has been given why, to the Dispatch Court Judge and his Deputes, addition should be made of a set of Judges of a different species, according to the intimation given by the provision thus made of a different name. The reason of this diversity is the benefit looked for from the saving in the article of expense. For an Auxiliary Dispatch Court Judge, a small fraction—say a tenth part—of what at the commencement of the institution would probably be found necessary, may, as will be seen, suffice: and considering the magnitude of the number of assistants which it will probably be necessary to provide for the Dispatch Court Judge Principal, not inconsiderable will be the total amount of the saving thus produced: indeed, were it not for this economy, it seems probable, that in practice an insuperable bar to the whole institution would be opposed by the magnitude of the expense.

Art. 8. For this reason, a necessary operation has been the putting out and deducting from the remainder of the business that sort of work for the performance of which the remuneration attached in practice to the less difficult sort of work can be shown to be sufficient: and for this purpose, magnifying glass in hand, to apply the eye of scrutiny to the several atoms of which the matter of the practice, or say procedure, is composed: this accordingly is what has been done.

Art. 9. In so doing, observation came to be made of a distinction which has place between the species of suits which may be styled simple, and a species which may be styled complex. By a complex suit, understand any suit which contains in the body of it, and as it were imbedded in it, a number more or less considerable of simple suits: insomuch, that after the commencement of the complex suit in question, before it can have been brought to its termination, other suits arising out of the matter of it must, in a number more or less considerable, have received not only their commencement, but their termination likewise. Of this, see further on.

Enactive.—Expositive.

Art. 10. Thus, then, established in the Dispatch Court there will be four distinguishable classes of Judges, whose denominations are the following:—

• 1. Head or say Chief Judge Principal.
• 2. Head or say Chief Judge’s Depute.
• 3. Auxiliary Judges Principal.
• 4. Auxiliary Judges Depute.

By these several denominations they will henceforward be designated.*

Enactive.

Art. 11. Functions of an Auxiliary Judge, two:—that is to say—

i. The Master’s Service-performing function; or say, the Master’s Service function.

ii. The Elementary, or say Excretitious Suit-dispatching function; or say, the Collection and Distribution-performing function.

Expositive.

Art. 12. By the Master’s service-performing function,—understand that function to which exercise is given by the performance of the several operations which in the Court of Chancery are performed by the functionaries styled Masters, with the exception of these administrative operations which by Section VIII. are transferred to Consignees.†

Expositive.

Art. 13. By the Elementary-suit, or say Excretitious-suit-dispatching, or say Collection-and-Distribution-performing function—understand the following:—Where by a last will or a conveyance of the whole or any part of the estate, or say property, of an individual, with his concurrence and consent, for the discharge of his debts, a gross sum has to be divided into shares,—deciding in what manner it shall be parcelled out among such persons as by the written documents received from the Equity Court, or from the claims put in by the persons in question, in the proportions that shall appear to be due to them:—and in case of contestation, deciding upon the validity of the several claims made of the several shares.

Instructional.

Art. 14. In a pecuniary account, as between debtor and creditor, whatsoever be the number of items, no one of them is there to which it may not happen to be the subject-matter of contestation, and thence of a suit: in this way, out of one suit which, when transferred to the Dispatch Court, was still in pendency in the Equity Court out of which it was transferred, may, after such transference, be made grow suits in any number, to which may accordingly be given the denomination of excretitious suits; and to the Equity suit out of which they grew, the correspondent denomination of a pregnant, or say prolific, or proliferous suit.

Art. 15. Of a suit of this sort, the subject-matter is of the number of things spoken of in Section VIII. as being of a nature to be placed in the hands of a consignee until an effectual distribution of the aggregate sum of money in question among the persons thereunto entitled can be made.

Art. 16. Accordant with one another are the two functions in this;—namely, that to the due exercise of them no scientific law learning is necessary, any more than to the Commissioners of most of the Small-Debt Courts, by whom are notwithstanding exercised functions as effectually and incontestably judicial as those exercised in and by any of the several Wesminster-Hall Courts: nor so much as to one species of Judge—the class of Judges styled Justices of the Peace. On the Chief Dispatch Court Judge-Principal is the reliance for the performance of whatsoever operations, to the performance of which the need of scientific law learning, such as that supposed to be possessed by the Wesminster-Hall Judges, has place.

Enactive.—Ratiocinative.

Art. 17. Taking cognizance, each of them, of so many elementary suits or parcels of elementary suits, at one and the same time, may be each one of any number of Auxiliary Judges: and thus will be saved a correspondent portion of the time which would otherwise be occupied by the complex suit of which they are the elements.

Enactive.

Art. 18. The moneys, for the collection of which an Auxiliary Judge is appointed, will be paid, as above, into the hands of a Consignee or Consignees (as per Section VIII. Consignees,) or into the Bank of England. Name of the mandate by which the receipts of a sum of money for this purpose is ordered to be made, a Money-reception-ordering Mandate: form, as per Schedule No. XXI., saving some small sum reserved for current expenses, as in the case of money paid in by order of the Judge Principal.

Art. 19. A sum of money, when adjudged due to any party, will be ordered to be paid by such Consignee, or by the Bank of England, to him to whom it is adjudged due. Name of the mandate, a Payment-ordering Mandate: form, as per Schedule No. XXII.

Enactive.

Art. 20. In every case, the matter will come, in the first instance, before the Judge Principal: for him it will then be to determine whether to keep the whole of the suit for his own cognizance, or to allot any and what part of it respectively to a Judge Depute or a Judge Auxiliary: to a Judge Depute he will accordingly allot, as above, whatsoever part there may be for which law learning is regarded by him as needful: to an Auxiliary Judge, in his quality of accountant, whatsoever part there is in the instance of which correctness in arithmetical operations is necessary, and dispatch of course desirable.

Enactive.—Ratiocinative.

Art. 21. Of every such Court, by whichsoever functionary kept, the Judge Depute or the Judge Auxiliary, the doors, exceptions excepted, should be constantly open. In each instance, if visitors came, the more there were of them the better; if none came, no harm could any such arrangement be productive of: and in every case, on the part of the Judge, the habit of witnessing the influx, or even without the habit, the eventual expectation of it, would naturally be productive of more or less good: better would be the state of things than under the existing practice, in which the business is performed in a hermetically-sealed receiver, the Master’s Court; and accordingly, responsibility, security against malpractice, in a word, appropriate aptitude in all shapes, minimized.

Enactive.

Art. 22. For giving, in case of non-compliance, execution and effect to the payment-ordering-mandate of an Auxiliary Judge, application will be made of the thereto-applying powers conferred by Section VI. Judge’s Powers, on the Judge Principal: that is to say—1. Prehensive power, as per art. 5; 2. Prehensive and imperative power, as per art. 6; 3. Prehensive and dispositive power, as per art. 8; 4. Prehensor-dispatching-power, as per art. 14; 5. Incarcerative power, as per art. 15; 6. Disincarcerative power, as per art. 16.

Art. 23. Means of obtaining the application of these same powers to those same purposes, the following:—

i. By the Auxiliary Judge a certificate is given of the needfulness of the power in question for the purpose for which the application is made: reference being therein also made to the minutes of the evidence by which the fact of such needfulness is regarded by him as being established. Name of such certificate, a prehension-requiring certificate, or a prehension-and-imperation-requiring certificate, &c. as the case may be; adding to the name of the compulsory mandate the word requiring.

Art. 24. In a case in which the suit has been transferred to the cognizance of an auxiliary Judge, the party defendant will either be found being so on the occasion in question in some other Court than the Equity Court in question, or not: if yes, the Dispatch Court Judge Principal will, at the time of the transference by him made of the cognizance of the suit to the Judge Auxiliary, cause the documents, if any, and money, if any, thereto belonging, to be transferred to the Equity Court Registrar, as per Section VI. Judge’s Powers: and retaining the money, will hold the documents ready to be produced at all times for the inspection of the Auxiliary Judge during the hearing of the suit in question, as also at all other times. The demand being thereupon about to be resisted in the Auxiliary Court, the Judge will, on the application of the plaintiff, convene the defendant; that is to say, him who is so in such other Court: and thereafter the proceedings will be the same as in the case where, at the time of the transference into the Dispatch Court, the suit was not found to be in pendency in any other Court.

Art. 25. When, on the occasion of a suit in and by which, collection or distribution of money having to be made, the cognizance thereof, so far as regards these purposes, is by the Judge Principal transferred to a Judge Auxiliary,—the instrument by which such transference is performed will be an appropriate mandate issuing from the Judge Principal, and addressed to the Judge Auxiliary. Name thereof, a Cognizance-transferring Mandate: form, as per Schedule No. XXIII.

Art. 26. On this occasion, of two states of things, the one or the other will have place: In and by the Equity suit, all debts due to the estate, and all debts due from the estate, will already have been ascertained, or the existence of debts of one or other description, or both, will remain to be ascertained.

Art. 27. Whether of all debts due to and all due from the estate, the existence has or has not been ascertained, either all debts due to the estate have been got in, or some or all of them remain to be got in. If any remain to be got in, a judgment will either have been formed or not, whether any, and what, are to be considered as desperate, in such sort that no suit for the recovery thereof is to be engaged in. In the case of those that have been got in, either the whole amount will in the course of the Equity suit have been disposed of, or a part more or less considerable will, at the time of the transference of the suit from the Equity Court to the Dispatch Court, be in the Bank of England, standing in the name of the appropriate functionary of the Equity Court.

Enactive.

Art. 28. In the case of money due on the score of a legacy, on order made for payment of any sum,—power to the Auxiliary Judge to make provision for eventual refusion in consequence of just demands not at that time known, and for that purpose to require security for the refunding of whatsoever may be requisite for the satisfying of such demand.

Art. 29. Mode of providing for such refusion, this: Forbearing to issue a payment-ordering mandate, as per art. 19, to any creditor or person, until by him or her such security has been found. Name of the mandate, a refusion-securing mandate: form, as per Schedule No. XXIV. Employable modes of such security, as per Section VIII. Consignees, art. 10. The sum, for the eventual refusion whereof security is thus provided, may be the whole or any part of the sum, payment of which is ordered, as above.

Ratiocinative.

Art. 29*. Why ordain any such refusion? Answer.—Reasons:—

i. To prevent injustice to creditors, who without blame on their part are by local distance, infirmity of mind or body, or other cause, prevented from coming in within time.

ii. To preserve the parties from the delay, expense, and vexation of the sole accustomed remedy against such injustice: namely, an Equity suit.

Enactive.—Instructional.

Art. 30. On the occasion of each individual suit, the Dispatch Court Chief Judge Principal will either perform with his own hand the whole of the business belonging to it, or distribute the whole or any part of it among the several other Judges, in such proportion as shall have been deemed by him most conducive to the ends of justice.

Art. 31. Thence it is, that between the functions belonging to one of the classes above named (art. 11), and the functions belonging to another,—as between the functions belonging to the hereinafter-mentioned accountants, no need has place for the drawing of an exact line.

Art. 32. That which, on this as on every occasion, is essentially desirable, is—that (as elsewhere mentioned) the provision made should be elastic,—fitted, or capable of being made fit, to the circumstances of each and every individual case. Proportioned to the degree of this elasticity is the latitude of the discretion given to the Judge. Proportionably dangerous would this latitude be, but for the regulator which is capable of being applied to it. This regulator is the obligation of giving reasons for what he does: for, by this operation of reason-giving, the matter is brought under the cognizance of the Public Opinion Tribunal.

Expositive.

Art. 33. Between the service of the Auxiliary Judge and that of the Dispatch Court Judge Depute, in respect of the elementary-suits-dispatching function, the difference is this:—By the Dispatch Court Judge Depute the whole of the business of the suit in question is carried on, in the same manner as it would have been by the Dispatch Court Judge Principal: by the Auxiliary Dispatch Court Judge, in virtue of his excretitious-suits-dispatching function, such parts only as are hereinabove mentioned; see art. 49.

Ratiocinative.

Art. 33*. Of the institution of these same Auxiliary Judges, over and above the Dispatch Court Judge Deputes, as per Section V., the uses and correspondent reasons, so far as regards their excretitious-suits-dispatching function, are these:—

i. Of the sorts of suits of which the Judge Principal has cognizance, there not being any one to which it may not happen to be taken cognizance of by a Judge Depute,—in other words, his field of service being co-extensive with that of the Judge-Principal, whose Depute he is,—thence it is, that for the rendering of the service for which he is engaged, need has place for appropriate skill in his instance, not less than in the instance of the Judge Principal by whom he has been deputed: need for appropriate skill, and thence ultimately for correspondent remuneration at public expense:—whereas, for the cognizance of a suit of the sort of these same elementary suits, the minimum of appropriate skill may be sufficient: for example, that which is possessed by the species of unlaw-learned Judge, styled a Commissioner of the sort of Small Debt Courts, styled Courts of Requests or Courts of Conscience.

ii. Small, it will have been seen, is the number in which Dispatch Court Judges need or ought to be constituted: whereas, on the occasion of one and the same pregnant suit, it may happen to elementary suits in any number to have place, and to any number of them to be referred to the cognizance of one and the same Auxiliary Judge.

iii. Whatsoever be the number of these same elementary suits, and whatsoever be the number of the Auxiliary Judges among whom they are distributed, so many as there are of these same Auxiliary Judges, so many are there which are capable of being carried on all of them at the same time: thence a correspondent saving of delay to the suitors, and of the expensively-remunerated time of the Judge Principal.

Exemplificative.

Art. 34. Examples of excretitious suits are—1. Suits maintained in quality of plaintiff by the consignee of the estate of a person deceased, on account of monies which he has to collect; 2. Suits maintained by him in quality of defendant, in case of his thinking fit to refuse compliance with demands made upon him in consequence of his having money’s worth to distribute.

Expositive.

Art. 35. By the Auxiliary Judge’s master’s service-performing function, understand the aggregate of the several functions performed in an Equity Court by the sort of subordinate Judge intituled a Master in Chancery, in subordination to the Lord Chancellor, the Vice-Chancellor, and the Master of the Rolls.

Enactive.

Art. 36. Located by the Chief Dispatch Court Judge will be the Auxiliary Dispatch Court Judges, in such number as, in addition to the Dispatch Court Judge’s Depute, he sees reason to regard as necessary and sufficient for the purpose of minimizing delay in the suits of which he has cognizance. For reasons, see above. Form of location, see Schedule No. XXV.

Enactive.

Art. 37. Term of service, unless dislocated, the same as that of the Dispatch Court Judge-Principal, as per Section II. art. 4, 5.

Enactive.

Art. 38. Power to the Judge-Principal, for reasons assigned, to suspend, dislocate, and relocate every such Auxiliary Judge, as in the case of a Judge-Depute, by Section V., Judge’s Deputes, art. 6.

Enactive.

Art 39. In the situation of Auxiliary Dispatch Court Judge, attendance will be the same as that of the Judge-Principal, as per Section XII., Sittings, times of.

Enactive.

Art. 40. In case of sickness, the Judge-Principal, or a Depute of his, as the case may be, will take the requisite measures for the substitution of a succedaneous Auxiliary Judge to the one so incapacitated by sickness; as per Section V. Judge’s Deputes, arts. 3, 4, 5.

Enactive.—Ratiocinative.

Art. 41. Responsible for every Judge-Auxiliary will be the Judge-Principal, as per Section V. art. 7, for every Judge-Depute. Reasons in this case, the same as in that.

Enactive.—Instructional.

Art. 42. Power to the Dispatch Court Judge-Principal, on his responsibility, to locate in the situation of Auxiliary Judge, in and for the suit in question, any such person as in his opinion is sufficiently qualified for the performance of the functions in and for the elementary suit or suits in question to be exercised.

Ratiocinative.

Art. 42*. Why leave thus absolutely to the discretion of the Dispatch Court Judge-Principal, the choice of every Auxiliary Judge, with the several correspondent powers of suspension and dislocation?—thus absolutely, and without rendering the possession of a qualification in any determinate shape necessary?

Answer.—Reasons:—

i. In the case of the situation of a Justice of the Peace, the power of location is thus absolute, and so as to the power of dislocation: and in that case, no need of application, for the purpose of obtaining such dislocation, has place.

ii. As to qualification, in the case of that situation, no qualification of any kind has place, other than one in which it is nugatory, affording not any the least security for appropriate aptitude in any shape: in the case of a Justice of Peace at large, income of £100 a-year in a particular shape: in the case of a Justice of the Peace in the situation of a London Police Magistrate, the having eaten a certain number of dinners in one or other of four large dining-rooms.

iii. Responsible will the Judge-Principal be to the Public Opinion Tribunal for every such choice: and on every occasion, fixed upon him with a view to it will be all eyes. Responsible is nobody for the choice made of Justices of Peace at large:—nobody to any effectual purpose, in the case of the Police Magistrates.

iv. For the uses, thence the purposes, by which the institution of these Judges was suggested, and which accordingly constitute the grounds and reasons which it has for its support, see those to which expression is given above, in Section V., Judge’s Deputes, art. 12*.

v. To the needful number of the Dispatch Court Judge’s Deputes, limits comparatively narrow may be seen set by the considerations there brought to view. If, in the case of complex suits, as above described, that number were not capable of being enlarged, Equity Court suits in indefinite number would have to stand still, waiting for the termination of this or that one comparatively unimportant and insignificant suit.

vi. What is the number likely to be found requisite?—Answer: At the utmost, very considerably less than that of the Masters in Chancery, considering how much more assiduous their attendance would be, and that they would not have anything to gain by the practice by which those masters in the arts of depredation make such enormous gains—that of chopping the business times into small scraps, the greatest part of each of which evaporates in inefficiency—in gossip, newspaper-reading, or non-attendance; and who attend not more than half the days in the year, or some such matter, upon an average: of one of them in particular, in a pamphlet published a few years ago, mention may be seen made, in whose instance the time employed in the exercise of his functions exceeded not five months out of the twelve.

Enactive.

Art. 43. Power to the Dispatch Court Judge to locate Accountants in such number as from time to time, in his judgment, the demand indicates.

Enactive.

Art. 44. On the occasion of every such location, he will frame an appropriate report, stating his reasons, as in the case of Auxiliary Judge’s Depute, by which he has been induced to make such location.

Art. 45. This report he will address to the House of Commons, and deliver or transmit the same to the Clerk by whom execution is given to the orders made for the printing of papers for the use of the Honourable House.

Enactive.

Art. 46. Attached to the office of Auxiliary Dispatch Court Judge will be a salary of [£400] a-year: payable at the same time and in the same manner as by Section II. art. 1, that of the Dispatch Court Judge Principal.

Ratiocinative.

Art. 47*.—i. This was the salary attached to the office of Police Magistrate at the institution of it, anno 1792. With this remuneration, David Colquhoun, the well-known and most meritorious functionary the office was ever filled by, was well content, to the knowledge of the author of these pages. Added some years afterwards to this £400, was £200: and subsequently another £200:—on each addition, if, in respect of the satisfaction given, there was any alteration, it was from good to indifferent, and from indifferent to still more indifferent.

ii. Added to remuneration in this pecuniary shape and quantity, and the inducement it affords, will be in expectancy, though not certain, yet in degree proportioned to the appropriate aptitude exhibited in this situation, the situation of Judge Principal in one or other of the proposed local judicatories, if and when, as herein proposed, instituted.

Enactive.

Art. 48. Attached to the office of Accountant Auxiliary Dispatch Court Judge will be a salary of [£300] a-year, payable as above.

Ratiocinative.

Art. 48*. This, and no more, is the remuneration attached to the office of Comptroller in one of the Boards, and with this remuneration the occupant located in the office, in the teeth of usage by mere merit, was and is well content, to the knowledge of the author of these pages.

Enactive.—Instructional.—Ratiocinative.

Art. 49. Between the description of persons employed as Judge Deputes, and the description of these employed as Judge Auxiliaries, shall there be any, and what difference?—Answer: Yes. Of the appointment made of Judge Deputes, the purpose is their doing all sorts of business without exception that are done by the Judge Principal—those which require the greatest share of law-learning, as well as those that require the least: whereas the business allotted to the Auxiliary Judges is that in the case of which the greatest quantity of time is necessary, and the least quantity of law-learning sufficient:—as per art. 33.

Enactive.—Instructional.

Art. 50. Qualifications suitable and desirable, are, so far as regards judiciary procedure,—such as the elicitation of evidence,—law-learning and law-practice: so far as regards the taking the accounts, accountantship practice.

Art. 51. Of persons in whose instance the requisite law-learning may reasonably be looked for, are—1. Barristers of short standing as such; 2. Students of long standing as such. Of persons in whose instance the requisite accountantship may reasonably be looked for, any person by whom, in the character of a profit-seeking occupation, that business is carried on. Suits there may be, in which a demand for appropriate qualification in both these respects may have place: to these cases the Judge Principal will pay due regard.

Instructional.

Art. 52. The logical field of service being, as above, no wider than that of one of the numerous Judges of a Small Debt Court, called a Court of Conscience, they not being lawyers, no greater share of law-learning will be necessary in his case than is regarded as necessary in theirs.

Enactive.

Art. 53. If in a case of which an Auxiliary Judge is taking cognizance, a point of law comes upon the carpet, power to the Auxiliary Judge, or to any party in the suit, to cause the decision to be referred to the Judge Principal.

Enactive.

Art. 54. To the Dispatch Court Judge Principal, appeal lies from the decisions of every one of the Judges subordinate to him, as above.

Art. 55. From no one of those same Judges does appeal lie to the decision of any other.

Ratiocinative.

Art. 54* and 55*.—i. Of any transient glance bestowed upon the immense delay and expense produced by every appeal in the present state of judicial practice, a natural result is, an apprehension of the like in this case: altogether groundless it will be found on a second glance.

ii. In relation to any point, or any number of points, in the decision of any one of these subordinate Judges, appeal may on that same day, or even in that same hour, be made to the one Judge Appellate, and ultimate decree pronounced by him.

iii. In this case, of the causes by which in the present practice effects so pernicious are produced, one will not have place at all: the other will not have place but in a much inferior degree of efficiency.

iv. The cause which will not have place at all is—on the part of the malâ fide suitor, on the defendant’s side, when debtor, staving off the time of payment, thence profit by interest of money or profit in trade; on either side, when to a certain degree richer, gaining the matter in dispute by the inability of the adverse party to go on with the suit: on the part of the lawyers on both sides, the profit by fees.

v. The cause which will not have place but in a much inferior degree of efficiency, is—on both sides, the lawyers’ profits by fees. By exclusion of that part of the expense which is produced by the delay, exclusion will be put upon the lawyers’ profit on that expense: what remains obtainable by the lawyer or lawyers, amounts to no more than the fee for a single speech in addition to the first, and by the cost of this second speech the malâ fide suitor will be divested of all benefit in every shape, from a groundless or ill-grounded appeal.

vi. In the ordinary state of things, the uses of appeal are—1. Preserving consistency as between one and another in the series of judicial decisions; 2. Security against malâ fide misdecision. But as to the first of these uses, no application has it on the present occasion: for by express provision, all such application is purposely interdicted: and the other will actually be derived from it.

vii. As to any further stage of appeal, in addition to this one, what has been elsewhere shown is—that from any number of such additional stages in any number, no additional security against bonâ fide misdecision can be derived.*

Enactive.—Ratiocinative.

Art. 56. Such appeal may be made, not only from the ultimate decree, but from the decision on any intermediately intervening question, from the commencement of the suit to the close of it. For, by any such intervening decision, it may happen that the fate of the dispute between the parties may be decided, as well as by the ultimate decree.

Enactive.

Art. 57. In case of groundless appeal, power to the Judge Appellate to give costs; and even in addition thereto, to impose mulct.

Enactive.

Art. 58. Power to the Law Auxiliary Judge to locate Deputes, as many as he sees need for: all of them on condition of serving without remuneration in and during the probationary year, as per Section V. Judge’s, &c. Deputes.

Ratiocinative.

Art. 58*. Advantages resulting from this plan of Probationary Deputes’ location, these:—

i. By an experimental test it is rendered manifest whether the service has or has not need of the several functionaries in question.

ii. So likewise whether and in what degree, relation had to the office in question, the several functionaries are endowed with appropriate aptitude.

iii. They will, each and every one of them, have the most efficient motive for doing his best in the exercise of the functions belonging to his office.

iv. No individual who does not feel within himself a consciousness of his appropriate aptitude, together with a determination to do his best, will take upon himself the duties of the office. No impelling motive will he have for taking it upon himself: an effectual restraining motive he will have to prevent him from taking it upon himself. See Section V. Judge’s, &c. Deputes, art. 12*.

v. No impelling motive will the Auxiliary Judge Principal have for locating any such Depute, unless in his judgment the service has need of an additional functionary in the office in question, and the individual whom he has it in contemplation to locate, possesses appropriate aptitude in relation to it:—aptitude not merely absolute, but comparative also; comparative, comparison had with every other individual by whom acceptance would be given to the office.

vi. By the exertions made by their subsequentially located colleagues, the antecedently located Auxiliary Judges will be stimulated to correspondent exertions on their parts: and thus will be kept alight a spirit of emulation, from which, on the part of the whole number, appropriate aptitude will naturally receive increase: the fire of emulation will be kept alive, and continually on the increase.

vii. All this without a particle of expense to the public:—to the public, nor yet to any individual who is not, with his eyes fully open, prepared and willing to take the office upon himself.

viii. The service will not be in danger of continuing burthened with the expense of a needless or unapt functionary,—expense in the shape of money or reputation;—burthened, by the reluctance to inflict a wound on the feelings of the individual.

ix. In the whole field of efficient service, is there a situation to which this principle of probationary location—say, this probationary-location principle,—may not be seen to be applicable with indisputable advantage?—in every instance, good consequences important and indisputable; evil consequences, none. Is there any such situation? Absolutely none: such is the answer that may be given with unhesitating confidence.

Enactive.

Art. 59. Thereupon the Auxiliary Judge Principal will present to the Chief Dispatch Court Judge a written instrument, containing the name of the person proposed by him to be located in the situation of Auxiliary Judge Depute, and declaratory of his opinion of the appropriate aptitude of the individual so proposed. Name of the instrument, an appropriate aptitude certificate. Form of it, as per Schedule No. XXVI.

Enactive.

Art. 60. Thereupon, the Chief Judge, if consenting, will subjoin his countersignature to the signature of the Auxiliary Judge Principal; and the location will thus be perfected.

Enactive.

Art. 61. Should the Chief Judge refuse or forbear so to join in the location, power to the Auxiliary Judge to present to the Chief Judge a requisition to state in writing his reasons for such refusal or omission: and if within [four] weeks from the day of the delivery of such requisition no such statement shall have been made, the instrument of location will be valid, notwithstanding the non-appearance of such countersignature, entry being made thereon of such requisition and non-compliance. Form of the requisition, as per Schedule No. XXVII.

Expositive.

Art. 62. By his consent, as testified by such his countersignature, the Chief Dispatch Court Judge is not to be understood to be responsible to public opinion for the aptitude of the individual so proposed by the Auxiliary Judge Principal.

Instructional.—Exemplificative.

Art. 63. Businesses of which, in the existing practice, the Masters in Chancery have cognizance, proper for the cognizance of the Judge Principal and his Deputes, and which as such will be reserved by him for his and their disposal, are those for the dispatch of which law-learning is requisite, such as is regarded as not being obtainable otherwise than by professional practice:—Examples, the cases in which it is referred to a Master to report concerning the goodness of the title to a landed estate which is destined to be sold or purchased.

Art. 64. Of the businesses of which, in the existing practice, the Masters in Chancery have cognizance, those proper for the cognizance of an Auxiliary Dispatch Court Judge are those for the disposal of which law-learning, such as is regarded as not being obtainable but by professional practice, is not requisite.

Examples are,—

i. Elicitation of evidence: for, to the Judges of the Small Debt Courts called Courts of Requests, otherwise called Courts of Conscience, by none of whom is any such law-learning possessed, is this function in every instance assigned.

ii. Formation of a judgment on the question of fact in evidence to him exhibited, or by him or in his presence elicited: for, to no unlaw-learned men at large, in the character of jurymen, is this function in every instance assigned.

Art. 65. To one or other of the above heads will be found referable all businesses of which under the existing practice Masters in Chancery have cognizance.

Enactive.

Art. 66. In contemplation of the absence of sinister interest it is, that in a suit coming under the cognizance of the Dispatch Court Judge, power is herein given to him—for deciding in favour of the authenticity and verity of an alleged source of written evidence, for the purpose of saving the delay and expense which would be the inevitable accompaniment of the transference of it to the Justice Chamber, in which the Judge in question sits:—a decision to this effect,—not indeed absolute and immutable, but liable to reversal or modification in the event of subsequential adequately-probative evidence of its want of authenticity or its falsity: on which occasion, moreover, adequate security will be taken for the application of adequate remedy in the satisfactive shape, in the event of disproof so made.

Instructional.—Ratiocinative.

Art. 67. For this reason, in addition to that of the saving in delay,—for these reasons it is, that instructions are given to the Judge Principal to take into his own hands, as much as may be, without preponderant evil by the consumption of his own time, the elicitation of the mass of evidence that belongs to the case, instead of committing the function to the charge of a Master or Masters, as in the practice of the Equity Courts.

Instructional.

Art. 68. In the procedure of the Dispatch Court Judge, sources of saving in respect of delay and expense, whence correspondent accelerative and economizing arrangements will be the following:—

i. Eliciting without interruption the whole mass of evidence which the suit affords, instead of splitting the process amongst days in indefinite number, distant one from another by intervals to an indefinite degree longer.

ii. Absence of all sinister interest by reason of fees, the aggregate of which increase with the aggregate quantity of time employed, or supposed to be employed, in the elicitation of it,—an interest which operates to so flagitious an extent.

iii. Where, and in so far as without preponderant inconvenience it can be done, distributing among Auxiliary Judges in an indefinite number, the elicitation of different parts of the mass of evidence belonging to one and the same suit.

Of these sources of saving, the two first have place in Jury-trial: the last is peculiar to the present institution.

iv. Giving power to the Judge to assume provisionally the establishment of a relatively-material fact by adequately-probative evidence, where no ground of suspicion of want of authenticity or verity has place, security being taken for eventual reversal or modification of the decision so grounded: as for example, the authenticity of a signature to a written document; forgery, especially under such a check, being too improbable to be reasonably presumable.

v. Care thus will be taken by the Judge to maximize the number of admissions: that is to say, the number of the material facts admitted by the party in whose disfavour they operate. The greater the number of these admissions, the greater the saving of the delay and expense of extraneous evidence: the expeditious means of procuring such admissions, epistolary correspondence per post, with inducement administered by the imposition of the burthen of costs, with ulterior remedy satisfactive, and even punitive if need be, in case of evil consciousness in respect of refusal to admit the existence of a fact, the existence of which could not but be known to the party so refusing.

Enactive.—Instructional.

Art. 69. Of the matter of the several suits, the Chief Judge Principal will on each occasion make such distribution among the Judge Deputes, the Auxiliary Judges, and the Auxiliary Judge Deputes, as shall, in his opinion, be most conducive to the ends of justice,—saving the regard due to the responsibility of the Auxiliary Judges for their several Deputes.

Instructional.—Ratiocinative.

Art. 70. In regard to the question of fact, what is material is—not that by one and the same person, or body of persons, judgments should be pronounced having for their grounds evidence applying to facts between which no connexion has place, as in Jury-trial is uniformly the case,—but that, in so far as possible without preponderant inconvenience in the shape of delay or expense, or both, the elicitation of the whole mass of orally-elicited evidence should be performed by or in the view of the same person or persons by whom the judgment grounded on that same evidence is pronounced. Why?

i. Because, where falsehood accompanied with evil consciousness has place, it is capable of being betrayed and made apparent by indications which it is not in the power of description to present to the Judge:—by indications—that is to say, by tone of voice, colour and lineaments of the face, gesture and deportment, in all imaginable respects: whence also the importance of having in the presence of each other two evidence-holders whose evidence is on good grounds expected to be in a state of mutual contradiction.

ii. True it is, that in some cases this identity is not material; in others not possible. The case in which it is not, comparatively speaking, material, is where, on the part of the evidence-holder, no sinister interest, applying to the suit in question, has place: as for instance, a public functionary having in his custody a source of written or oral evidence.

iii. Cases there may be, in which, either absolutely or without preponderant evil in the shape of delay or expense, or both, evidence-holders, two or more, cannot be brought together in the presence of the same evidence-eliciting and deciding Judge.

Instructional.

Art. 71. By the institution of Auxiliary Judge Deputes, the finishing stroke will be given to the system of accelerative and expense-saving arrangements included in and provided by the institution of the Dispatch Court with its correspondent procedure.

Art. 72. As the Dispatch Court proceeded,—as the Chancery Courts became emptied of their business, the Masters in Chancery might be pensioned off. Power to the Lord Chancellor, or to the Dispatch Court Judge, with the Vice-Chancellor or the Master of the Rolls, so to dispose of such and so many of them as he thinks fit:—A man to whom this retreat was an object of desire would of course make application for it by a written document: in the case of a man, should there be any such one, to whom it was not an object of desire, the appearance of its being so might be put on by his signature being attached to a document to the same effect; this being an expedient he would naturally be glad to concur in as a screen from the imputation of inaptitude.

Ratiocinative.

Art. 72*. Why give this power to functionaries more than one?

Answer.—Reasons:—

i. That, on the occasion of any operation unpleasant or pleasant to the individuals thus dislocated, the individuality of the operators may not be known to them.

ii. This is one of the cases, small in extent and number, in the instance of which the exception has place to the general rule by which individual responsibility, and thence on the part of the functionary, single-seatedness, is recommendable.

iii. Increased will be the demand for this concealment by exercise given to the power of assigning a situation with its functions to each functionary thus dislocated, in such sort as to render the pension conditional on acceptance given to the situation so assigned.

SECTION XII.

SITTINGS, TIMES OF.

Enactive.

Art. 1. Exceptions excepted, every day in the year will the Judge of the Dispatch Court sit on duty:—hours, not fewer than [6]; that is to say, from [10] in the morning till [4] in the afternoon.

Ratiocinative.

Art. 1*. Every day: duty of the Dispatch Court Judge, why rendered thus assiduous?

Answer.—Reasons:—

i. If for so much as a single moment, delay of justice,—that is to say, denial of justice for the time,—is an evil, so is it at each succeeding moment; and the greater the number of such successive moments, the greater is the aggregate of the evil.

ii. Completely is it in the power of the government to put an exclusion upon this evil. Yet does it decline to do so. Why?—Answer: Even because, for the comparatively small benefit and comfort of the comparatively few to whom it is bound by the bands of a common sinister interest, it chooses with its eyes open to afflict with the immensely greater burthen and discomfort, all besides.

iii. On no day in the year does a Justice of the Peace, in a case in which he is empowered to act singly,—that is to say, without another Justice of the Peace sitting and acting with him:—on no day does he scruple, or if so inclined, omit, to take cognizance of any suit which is brought before him at its commencement, or to proceed in one of which he has already taken cognizance.

iv. Justice of the Peace:—of the sort and degree of assiduity actually habitual on the part of Judges of this class, what are the causes?—Answer: These—

v. As to the sort and degree of assiduity: this requires explanation. Day on which a Justice of the Peace sits—not every day, but any day; that is to say, any day that is agreeable to him to sit. Yes: every day that it is agreeable to him to sit;—all those days, but no other days.

vi. Motives by which existence was given to this species of judicatory, what?

Answers:—

1. Benefit thereby afforded to the particular interests, pecuniary and quasi-pecuniary, straightforward and sinister together, of those by whom it was instituted.

2. To that same particular interest, benefit afforded in the shape of power.

3. So in the shape of amusement:—a comedy, tragedy, or tragi-comedy, acted: a dramatic entertainment; the principal part by an amateur performer—his Worship; the inferior parts, by his suitors.

vii. For the benefit of this or that sinister interest which they possess in common, Honourable Gentlemen and Noble Lords concur in the enactment of this or that Act,—whether salutary or for their conjoint benefit, predatory or oppressive. To make sure of giving execution and effect to it, they concur in constituting, each one of them,—himself and every other of them, Judges, to whom cognizance is given of all offences alleged to have been committed against this law. What is the result?—Answer: The system of procedure styled the summary:—the only system of procedure which ever had for its ends the ends of justice: in a word, to render the system perfect and applicable to all sorts of cases, so far as regards the mode of procedure, nothing wanting but certain additional powers and means, on the part of the Judiciary Establishment, certain securities for appropriate aptitude, moral, intellectual, and active; whereof those for appropriate moral aptitude are commonly called checks. Of these securities, about forty may be seen provided in Constitutional Code, Ch. XXI. Judiciary Collectively, § 32. Securities for appropriate aptitude.

viii. “When sleeps Injustice, so may Justice too.” Too often repeated can never be, till it is profited from, this memoriter verse. As often as a measure of sham law reform is in discussion in either House,—and into neither have any better measures been as yet introduced,—some stentorian voice, speaking through a trombone, should lift itself up, and drown the sound of hypocritical trash on both sides.

ix. Health, recreation, and comfort of the profession, quotha? This is a paramount and predominant consideration: conclusive, for the securing of good in this shape to preeminently learned few—(for the ordinarily learned will not complain of being overburthened:)—for the small comparative ease of this minute minority of the community—for the sake of a dozen or two, or a score or two—for these it is, that the millions are to be tormented.

x. Nor is this all: for on the field of law, tyranny has place, and is exercised on a large scale: and by the lawyers in silk gowns, the lawyers in stuff gowns, by whom non-lawyers are plundered and oppressed, have themselves been oppressed and plundered of their rightful share in the common.

xi. In the cluster composed of three of the so called Equity Courts, two of the Judicatories could not be brought to sit at the same time. Why? Because had they done so, the consequence would have been, that though by this simultaneity the addition made to delay, by setting them down to operate at different times of the day, would have been done away, by which means in a correspondent degree the torment of suitors (that is to say, the relatively honest part of the number) would have been lessened, yet so would have been the mass of the fees stowed into the preeminently learned pockets shrouded by the silk gowns.

xii. After consuming the first fruits of his energy, and enfeebling his faculties, with perhaps more or less of his health, in a morning Court, in the service of one set of clients, the learned harpy gives the dregs of those same faculties to another set of clients in an evening Court. The consequence is, that those Barristers, who if the two Courts had sitten at the same time, would have been leaders in one, fail of being leaders in either. Of the suits that within a given time might have been heard, and ought to have been heard, and, if all pretended regard for justice were not a mockery, would have been heard, only half are heard. Why this addition to factitious delay? why the ever-pertinacious refusal to break down the monopoly thus established?—Answer: Because, of the whole goodly fellowship of those leaders, actual and possible, the most eminent and influential have seats in Honourable House; in which said Honourable House, if for their sakes the less influential are not kept in a state of comparative starvation, they might become troublesome: and instead of helping Ministers to plunder and oppress the subject many, might consume Honourable and Right Honourable time in debates, and obstruct the execution of the measures determined upon.

xiii. Among all these learned harpies, and in particular the arch-harpies among them, should it to any one have happened to make sacrifice of Hygeia to Plutus,—to have thus thrown away a part of his health in his search for gold,—indemnity is called for by him. Indemnity: at whose charge? At the charge of the relatively honest part of the whole population of suitors:—delay—the quantity of delay, measure of which is taken as above, organized and established. Set apart of every year is to be a large portion, during which the learned harpy is to continue feasting upon the prey seized by him, injustice all the while triumphing.

xiv. A surgeon, a physician,—what vacations, what holidays, what respite from hard and painful labour, what assistance to health by alleviation of it, have they or either of them? For any good to himself, whether in the way of pleasure, or of profit from any other source, or saving from loss, what day in the whole year can either of them stand assured of? For a shilling or two, or from efficient and unrequited benevolence, all night long, pinched with cold or drenched with rain, does the country surgeon pursue his way to the poor sufferer’s cottage. In the scale of morality and beneficence, of all professional men does not the medical man stand highest?—the indiscriminate defender of right and wrong by the indiscriminate utterance of truth and falsehood, lowest—down at the bottom, many degrees below zero—even at the point where mercury freezes?

xv. True indeed it cannot but be, forasmuch as both are men,—that as by a lawyer a suit is nursed, so by a medical practitioner, every here and there, instead of the patient, the disease. But in the case of the medical practitioner, this sacrifice of morality and the happiness of the comparatively many to the happiness of the comparatively few, is but an exception: whereas, on the part of the law practitioner, it is the universal rule. In the case of the medical practitioner, only in the less employed and inferior part of the profession is it the practice; for the most amply employed—those whose whole time is employed, have nothing to gain by any such cruel and dishonest practice: whereas in the law profession, it is by those who, being the most amply employed, are thereby possessed of the largest portion of influence, and in places in which the lot of the million depends upon the course taken by the one or the few,—it is by these, cruelly and dishonestly, that evil upon such immense scale is produced.

xvi. Not that it is upon degrees in the scale of morality that the question turns: it stands upon ground much more easily measured: it turns upon numbers. On what ground stands the claim to regard on the part of the subject-many?—on the part of the subject-many; and in particular against the lawyer tribe, and the dishonest part of their hirers, that of the relatively honest and afflicted portion of the community of suitors, added to the so much greater portion of the community consisting of those who, were they not by tyranny and corruption bereft of the means, would become suitors? Of the twenty millions or thereabouts, of which in the two islands the community is composed, where is he whose happiness has not as good a title to regard as that of any other: whatsoever may be the number of those of whose happiness, for the purchase of happiness in larger portion in the breast of others, it may be absolutely necessary to make sacrifice?

xvii. If in one shape—namely, the shape of immediate profit,—the medical practitioner has an incentive to nurse the disease,—in another shape—namely, that of reputation, obtainment of good repute and avoidance of bad repute,—he has a restriction: and whatsoever suffering would in his instance be produced by dishonest practice, it would be present to his senses: accordingly, honesty has sympathy for a corroborative.

xviii. But in the case of the law practitioner, whatsoever is done in the way of nursing the suit, is covered from the eyes of all but his accomplices and sharers in the profits of the misery-producing trade: nor in the higher branch of the profession, of the suffering produced by any mal-practice of his in any shape is any part ever, unless by mere accident, present to his senses: so that, in this case, no place is there for sympathy. By this or that question, or by purposed misrepresentation of this or that matter of fact, the law practitioner—the law practitioner of the highest order—puts the extinguisher upon this or that claim, of the well-groundedness of which neither he nor any one else to whom the state of the case is known, entertains any so much as the smallest doubt: on the occasion of which, the expectation of the party in the right is of course correspondently intense and sanguine; the disappointment produced, with its inseparably-accompanying pain, correspondently intense and severe. Of this suffering, to the senses of the solicitor presents itself, or does not, a single glance: to those of the leading advocate by whom it was caused, not so much as a momentary glimmering. Into the purse of the author of the evil have found their way some ten or twenty guineas: of the injured suitor the whole life remains drenched in bitterness, by which he is at last brought to an untimely grave.

xix. By the medical practitioner, the man whose leg has been fractured is not left to die of a mortification; the man who has a stone in his bladder is not left to suffer for years together for want of the solution or extraction of it. Whence comes this state of things?—Answer: From this. Were the sufferer to die for want of medical aid, no fee would the medical practitioner receive; were the sufferer left to suffer with the stone in his bladder for one, two, or three years, no fees all the time would the surgeon receive: in which state of things, the longer the stone remains without anything done towards ridding the sufferer of it, the longer is the time during which no fees are received:—whereas in the case of that malady, the seat or source of which is in the body-politic, the longer the delay with its attendant pain continues, the richer the profit made by the authors of it.

xx. Uniformly opposed to the interest of the client is the interest of the law practitioner: of the practitioner on the opposite side of the suit, completely; of the practitioner on his own side, not altogether, but to a considerable degree always. If it be his interest that his client, right or wrong, justly or unjustly, should gain the suit, it is not the less his interest that the expense,—and so far as that is increased by delay, the delay,—be maximized.

xxi. Partly from the close connexion between the interest on the one side and the other—partly from the sympathy produced by the spectacle of human suffering as above, beneficence—gratuitous beneficence—to a vast extent, has place in the instance of the medical practitioner; to no extent at all, in the case of the law practitioner. Of the afflicted, the number gratuitously relieved by the medical practitioner is perhaps not less considerable than the number for relief of whom remuneration is received:—in the case of the sufferer, whose suffering has injustice for its cause, inquire where you will, scarcely in a single instance will you find any such thing as gratuitous service.

xxii. Among law practitioners, infamous would that man be held, who should be known to be ready to render his appropriate service upon reduced terms: to Coventry would he be sent by the whole fraternity of his learned brethren: to consign him to utter ruin, no endeavours on their part would be wanting. For the giving increase to the present business, and extorting pay of advocacy service, by no expedient that could by human ingenuity be devised for the purpose, would any the least reproach be in this quarter incurred: approbation, if not public, at any rate secret and universal.*

Enactive.—Ratiocinative.

Art. 2. Days excepted are as follows:—

1. All Sundays,

2. Christmas day.

3. Days hereby allowed to the Judge for health, recreation, and care of his private affairs. These are—

i. [Fourteen] days following one another, of which Christmas day is the first.

ii. [Fourteen] days following one another, of which Midsummer day is the first.

Art. 3. The Auxiliary System, as per Section XI. Auxiliary Judges, being established, the relaxation thus allowed to the Dispatch Court Judge may have place without any delay to the proceedings of the Judicatory, and accordingly without detriment to justice.

Art. 4. Power to his Majesty, by order in Council, at any time, on timely notice given in the London Gazette, with or without other periodical publication, to vary the places of the vacation days in the Calendar, so as the number of them be not increased.

[* ]Power.] Omitted after this word may be the words “is hereby given.” Familiar, already, in legal language, is this elliptical form: witness, in particular, in the business of conveyancing. No ambiguity, any more than obscurity, is occasioned by it. Frustra fit per plura quod fieri potest per pauciora, says a law maxim, not ill known, though so little observed. This maxim works well: for it works by estoppel against the man of law.

For the same reason, frequent throughout will be seen to be the omission of the verb substantive. With the conciseness, it gives nerve and dignity. In Latin prose, as well as poetry, it is frequent: and so in English poetry. In the Latin works of Linnæus, the illustrious Swedish naturalist, scarcely is the verb substantive to be found.

[† ]Judicatory.] Judicatory, not Court. Court is in a high degree pregnant with ambiguity: having, besides its topographical and architectural, various political senses, in addition to the judicial. Witness the Court of Aldermen, Court of Common Council, &c. &c. &c. From all this ambiguity the word judicatory is free. On the present occasion, however, so far as regards the giving denomination to the new Judicatory, the word Court is employed; the public, as well as the professional ear, being so much more accustomed to it than to the word Judicatory.

[‡ ]Suit,] or Cause. Upon the word cause an exclusion is hereinafter put. Reasons:—

1. Its ambiguity. Continual is the need of employing it in its more extensive sense, as in the locution efficient cause.

2. Suit can be employed, where cause, as synonymous to suit, can not.

3. Examples:—1. Suit at Common Law; 2. Suit in Equity. Scarcely is it ever said, Cause at Common Law, Cause in Equity.

[∥ ]The arrangements contingent upon this and the subsequent articles were, as per Section X. Suits’ comparative suitableness, at a later period modified by the author, for reasons which are explained in the note at the beginning of Section X.—Ed.

[§ ]Transference.] 1. As to the arrangement, by which in the present instance, a suit is, without imputation of misdecision, taken out of the possession of the Judge in whose judicatory it originated, and removed into another, operating upon principles widely different,—taken out of the regular and technical course, and removed into the natural and summary,—in this feature there is nothing that has not its sanction in established practice.

2.—i. In the first place comes the widely-extending case, in which, by the writ called a certiorari, a suit is taken out of any one of the existing local, into one or another of the Westminster-Hall judicatories. On this head, these few words may suffice. Of this arrangement the origin being lost in a manner in the clouds of antiquated lore, no precedent exactly in point, as the phrase is, is afforded by it. True it is, that those courts, out of whose hands the jurisdiction was thus taken, were of the inferior, not of the superior order. But, suppose need of change to have place, what difference does it make whether the courts be of the one order or of the other?

3.—ii. Be this as it may, in the second place comes the whole jurisdiction of the Equity Courts; more particularly that branch of it, by which a suit being in the possession of a set of Common-Law Judges, was and is, without any the least suspicion of misdecision on their part, taken out of their possession and carried on and determined, upon altogether different principles; and this interruption given to the suit at any part of its course.

4. True it is—that, in two circumstances, nor these immaterial ones—the present modern case differs from that ancient case.

5.—1. One is—that in this case, the object is, and the incontestable effect will be, the reduction of the mass of delay and expense from a mountain to a mole-hill: in that case, one effect has been, nor can it be doubted but that one object, and that the main one, was the raising the hill (the appellation of mole-hill would not here be in its place) into a mountain.

6.—2. The other is—that, in that case, during the sleep of the infant legislature—the, in those days, ricketty, weakly, and purblind legislature—the usurpation was effected, by one subordinate instrument of the King’s executive authority encroaching upon another: their common master, if he understood anything, understanding nothing but fighting and hunting, and looking another way, not knowing nor caring what they were about;—in the present case, by the legislature itself,—the only authority which is, or dares pretend to be, competent to the purpose.

7.—iii. In the third place, a proposition there is, which, though not carried into effect, may not be altogether on this occasion without its claim to notice. It is, that about the institution of a commission for the clearing off of certain arrears: an expedient mention of which is made in the Preface. Of the mention on that occasion made of that expedient for the production of the needful effect, the purpose is the exhibition of its impracticability, and of its inaptitude were it practicable. Of the mention here made of it, the only purpose—the only one, but that a sufficient one—is, the presenting to the public at large, and Equity suitors in particular, the observation, that all persons, and in particular all lawyers, who have acceded to that proposition, stand precluded—or, in lawyers’ language, estopped—from stating, as an objection to the present system, the circumstance of its taking a suit out of one set of hands, and placing it in a different set.

8.—iv. In the fourth and last place, look to France—look to Bonaparte’s code: in that so-recently-framed, and so-highly-and-extensively-approved body of existing law, may be seen the same salutary and well-intended arrangement exemplified; though without any such ulterior benefit in contemplation, as that which the here-proposed institution has for its object; namely, the affording, for the efficiency and beneficence of all-comprehensive change proposed, the pre-ascertained security here promised by the cheap and quiet experiment hereby organized.

9. In that one of the French legislator’s five codes, which bears the title of Code de Procedure Civile, Art. 7. is a passage, of which the following is a translation:—“The parties may at all times present themselves spontaneously before a Juge de paix: in which case he will hear and determine the matter in dispute between them, either in the last resort, if either from the law or the parties he has authority so to do, or subject to appeal: and this even where he is not the natural (or say proper) Judge of the parties, either by reason of the habitation of the defendant, or by reason of the local situation of the subject-matter in dispute.”—Here ends the passage; meaning, of course, by subject-matter in dispute, a thing immoveable, such as (for example) a piece of land, a house, or other erection, &c.

10. In the character of a precedent, the value of this arrangement will not escape the notice of a real lover of justice. Off fly the fallacies and cavils, of which the words theoretical, speculative, utopian, good in theory, with their et cæteras, are the vehicles. Behold here, in this law and in this practice, not only what may be done, but what is done, where the ends aimed at are the proper ends of justice. Not that in Bonaparte’s Procedure Code these ends are uniformly, and undeviatingly, and exclusively aimed at: for in the penning of it, the claw of the learned harpy has here and there contrived to come in for its share;a but that they are so in a degree prodigiously superior to any that can be seen exemplified in any Procedure code anywhere as yet established.

11. Danger to justice,—can any ground be formed for any such apprehension, from a power to this effect, given to the individual, whoever he may be, who, in the judgment of the majority of those whose interest it is that the best choice should be made, is the worthiest that all England can afford? Why, for these fifteen years, or more, has this same power been possessed and exercised, and that without complaint, all over France (not to speak of other countries,) by a numerous class of judges, many individuals of which have for their remuneration not so much as £50 a-year as salary, without any thing in the shape of fees.

[* ]Queries for the defenders of the so-called Equity Courts, to make answer to—in Parliament, and by the press, on pain of being understood to have confessed the inaptitude of those same judicatories, and the aptitude of the proposed transference.

i.—Query 1. Under the name of Equity Courts, judicatories have been instituted, by which suits were drawn, from the average length of a year or two—(the length in a common-law suit) to many times that length: in some cases, from the necessary length of a few minutes to as many years: why should not these same lengths be reduced to years, months, days, or minutes, according to the complexity or simplicity of the matter of fact, and the tardy or immediate forthcomingness of the evidence?

ii.—Query 2. In these same pretended seats and sources of equity, the expense has been swollen, from the next to nothing, corresponding to the minutes of attendance, to the hundreds, thousands, and tens of thousands of pounds:—why should it not, from the tens of thousands and so forth of pounds corresponding to the tens of years, be reduced to the next to nothing corresponding to the tens or units of minutes?

iii.—Query 3. In these same pretended seats and sources of equity, that means and time might be provided, for dividing the money of suitors in such vast proportion among the lawyers—more than forty millions’ worth of property in the shape of government annuities, besides landed and other property to an unmeasurable amount, have been taken into, and remain in, the hands of judges:—why should not a judicatory be instituted, by which the property would be taken out of the hands of the plunderers, and placed in the hands of the individuals who would otherwise be plundered?

iv.—Query 4. These same pretended living guides to human action—have they not—sometimes instead of, sometimes even in opposition to and frustration of, the only really existing rule of action—the only alleged rule of action which has a determinate and visible assemblage of words, and consequently an existence belonging to it—have they not, all along, been spinning out, do they not continue to spin out, an alleged rule of action purely imaginary, having no determinate assemblage of words, nor consequently existence belonging to it? still punishing men, to the ruin of their fortunes, for non-compliance with demands never issued—for non-conformity to rules never laid down? and thus, instead of that certainty on which human happiness depends, keeping on foot an all-pervading system of uncertainty?—to this uncertainty, why should not that certainty, which, by its only instrument, a written rule of action, might be substituted, be accordingly substituted?

v.—Query 5. By lawyers in abundance, and even by non-lawyers, consolidation is set up against codification; consolidation represented as requisite and necessary; codification as mischievous, or impracticable, or both:—do not they thus, every one of them, his utmost towards narrowing the application of the very benefit which he professes himself desirous of seeing established?

vi.—Query 6. When, on the mere ground of those imperfections, of which, whatever be the subject, literary composition is susceptible, he professes to regard written law as being less conducive to the ends of law, than is the so-called unwritten law, as if that were less susceptible of these very imperfections,—does he not thereby pass a peremptory condemnation on the very work which, under the name of consolidation, he is all the while recommending to be done?

vii.—Query 7. In these same seats of professed loyalty and professed regard for constitutional subordination, the occupation of the Judge consists, all along, in giving the force of law to rules having the effect of laws, of his own making; and thus, by his single authority—he being a creature of the King alone, made what he is by the King, and by such his creator every moment liable to be unmade,—substituting this course of unscrutable legislation of his own making, by authority of the King alone, to the legislation of the only legitimate and acknowledged legislature, composed of King, Lords, and Commons, in Parliament assembled:—why should not the only legitimate be substituted throughout to this, as well as every other, illegitimate legislature?

[* ]Written instruments.] Take, for example, affidavits, when evidence in that shape is required or admitted, as it is in all suits in the Superior Courts, and in particular in the Equity Courts. Immediately, or unimmediately, by his own hands, or by the intervention of others, the Judge receives (suppose) a profit proportioned to the number, or the lengthiness, or both, of the instruments of this sort admitted by him or called for by him. The motive he is determined by (suppose) is profit. But the motive he assigns, is of course the anxiety of his desire to come at the truth, for the purposes of justice: and, supposing the absence of his last-mentioned desire, by what means can any such absence be ever proved?

Take, for sub-example of the example, the case of the Honourable William Long Wellesley, and the proceedings by which the custody of and power over his children were taken out of his hands. Affidavits piled upon affidavits. All the occurrences that for a long course of years took place for any purpose, or could be supposed to have taken place, in the bosom of a large and extensively-allied family, taken for the subject-matter of a pile of conflicting affidavits. All this while, no other desire, but that of coming at the strict truth, had the Chancellor during whose reign the inquiry began; no other desire has the Chancellor in whose reign it is perhaps continuing. How should he? when, as everybody knows, in the breasts of rulers in general, and in particular of rulers of such high degree, no desire other than such as is most praiseworthy ever has place.

[* ]To bring to view the mutual equivalence or these locutions, belongs to a branch of art and science which may be termed Nomography. This again belongs to a branch of logic which has not yet been brought into notice, and which may be termed the Logic of the Will, in reference and contradistinction to the only branch of logic as yet designated by that name, and which may be termed the Logic of the Understanding. A treatise on Nomography will be found in the works of the author of these pages. [See ante, p. 233.]

[† ]Compared with these fee-gathering taxes, the tax called Ship-money, which constituted the proximate cause of the civil wars, styled the Grand Rebellion, was it not excusable, not to say justifiable?

A subject-matter not altogether undeserving of consideration, might it not be—whether a rebellion against King, Lords, and Commons, to shake off the tax by which justice is, as has been seen, to so vast an amount, denied and excluded, might not, if necessary, be even more clearly justifiable than a rebellion against the King, to shake off the tax by the proceeds of which ships for national defence were actually provided?

[* ]The giving this shape to the remuneration allowed to Judges, had in its origin necessity for its excuse, not to say its justification. See this proposition demonstrated in the work intituled Petitions for Justice, Vol. V. The giving to it this same shape at present has no excuse—in this instance or in any other.

[* ]Manifold are the occasions on which, vast the extent to which, public money has been expended, on the substitution of location in the way of gift, to location in the way of sale: buying out, and thus, in pretence, extinguishing, the profit by patronage; in effect, leaving it in the same hands untouched: thus adding to the corruption-fund the whole of the price paid.—See “Indications respecting Lord Eldon,” Vol. V. p. 348.

[* ]Such being the mode of payment under the Dispatch Court summary system—confront with it now an exemplification of the Equity Court regular system, the place of which it is proposed to take. Look into the office of the sort of subordinate Judge styled a Master in Chancery: the Court of this Judge, such office may be styled—in so far as a closed closet can with propriety be styled—a Court; meaning a Court of Justice. Behold here the whole business carried on in a manner, than which the wit of man could not have devised any other more exquisitely well adapted to the sole real purpose—the purpose of raising the two conjunct quantities—factitious delay and official profit—to the highest possible pitch: judicial attendance paid for by the hour, each such hour separated from every other by an interval of days or weeks, no one of those hours composed of so many as sixty minutes; no one of them sure of being composed of so many as sixty moments; of these moments, a number more or less considerable employed—partly in discussing the news of the day, partly in gathering up the thread that had been broken, and refreshing the traces that had been obscured, by so many intervening heterogeneous businesses.

[* ]Sheriff-Deputes.] Note, the acting Depute is styled Sheriff-Depute Substitute; the acting Principal being styled Sheriff-Depute, and the official person styled a Sheriff, a sinecurist. Official person? Yes: but, having no function to perform, with what propriety can this, or any other sinecurist, be termed a functionary?

[* ]Power-holder.] Analogous compound appellatives, householder, freeholder, &c. To the application made of this mode of designation, further extension will hereafter be given; to wit, in and by the words exemption-holder, evidence-holder, right-holder, &c.

[† ]Checks, or say securities against abusive advantages capable of being made of those same powers and exemptions.

[* ]Precedent. Of power not less extensive, a precedent may be seen in that given to the Commissioners for Inquiry into the subject of Real Property. And note, that in that case it was not, as here, by the King in Parliament that the powers were given, but by the King alone, with the counter-signature of the Keeper of the Privy Seal. Date of the commission, June 6: year of the King, the ninth: year of our Lord (not added), 1828.

“And for the better discovery of the truth in the premises,” says the instrument, “We do by these presents give and grant to you, or any three more of you, full power and authority to call before you, or any three or more of you, such and so many of the officers, clerks, and ministers of our Courts of Law and Equity, and other persons, as you shall judge necessary, by whom you may be the better informed of the truth in the premises, and to inquire of the premises and every part thereof, by all other lawful ways and means whatsoever.

“We do also give and grant to you, or any three or more of you, full power and authority to cause all and singular the officers, clerks, and ministers of our said Courts of Law or Equity, to bring and produce upon oath before you, or any three or more of you, all and singular rolls, records, orders, books, papers, and other writings belonging to our said Courts, or to any of the offices within the same, as such officers, &c.”

If, when conferred by the Crown alone, the conference of this power is legal, constitutional, and unexceptionable,—how much more clearly unexceptionable where the whole power of Parliament is, as here, applied to it? True it is, that the operations, to which in that case it extends, are no others than those designated by the words “bring and produce,” not extending to definitive transference; but, for the purpose here in question, such transference is necessary.

Turn now to the existing system. Look to it under the so-perfectly-distinguishable, though so-intimately-associated heads of factitious delay and expense; not forgetting complication, thence obscurity, uncertainty, and misdecision.

Living instruments, by means of whom, and consequently upon whom, Equity Courts operate, three: a Sheriff, a Serjeant-at-arms, and a Sequestrator: a Sheriff, for operating indiscriminately upon persons and things; a Serjeant-at-arms, for operating commonly upon persons only; a Sequestrator, for operating upon things exclusively. These, for Equity Court proceedings, by a bill and answer, exclusive of proceedings under a Bankruptcy Commission: as to which, see the next section—Sect. VII. Prehensors.

1. First, as to the Sheriff. This functionary is the common Jack-of-all-sides (juvenile cricket-players will understand this), to four different masters at once; namely, the three Westminster Hall Common-Law Courts, in all ordinary cases, and the Equity Judge, now and then, in an extraordinary case. By the Sheriff, understand, on this occasion, the Sheriff of Middlesex: the sheriff of that county alone, of all the fifty, having been regarded as having his residence near enough to the Equity Justice-chamber, to be capable of being operated upon by the Equity Judge, without preponderant inconvenience; accordingly, over this Edom alone has the David of Equity ventured to cast forth his shoe.

Not much less near at hand, it is true, than Middlesex, are three other counties; Surrey, to wit, Kent, and Essex;—a discovery, of which, for other purposes, and in particular for purposes styled police purposes, use has of late years been made. But, by causes which it would take too much room to explain, no other living instrument of this kind was found so well fitted as this Middlesex one to a Lord High Chancellor’s hand.

Note now how well fitted,—“No man can serve two masters,” says Scripture as well as Reason: meaning, by serve, serve well. But, hundreds of years ago, four sorts of judicial masters there were, besides this one, who, if they had not had each of them a fraction of this functionary to serve them for a servant, would have had none.

There are—the King’s Bench, Common Pleas, and Exchequer National Judicatories, having all of them the Sheriffs of all counties at their command; with the Justices of Peace in general sessions throughout the nation; County Judicatories, these—each having no other sheriff than the sheriff of its own county at its command.

In those days, the process of the King’s Judges being not unfrequently withstood by the Barons and Knights his feudatories,—the operations of civil government could no otherwise be carried on than by a sort of guerilla warfare. Commander of the army in each shire, the Earl—Saxonicé Alderman, Latiné Comes, meaning companion of the King, whence Normanicé Comte, Hispanicé Conde, &c.: Lieutenant-General, Anglo-Latine Vice-Comes, Saxonicé Scire-Gereve, (Deputy Commander of the Tertorial Division, thus denominated:) whence, by contraction, Sheriff.

And so, because, so long ago, this miserable makeshift was regarded as necessary,—it must now-a-days, to the exclusion of every appropriate instrument,—now, when it has so long ceased to be necessary,—be continued.

For centuries upon centuries, this Vice-Comes has been a deputy without a principal: the principal (who, when he had existence, was called the Comes, alias the Earl of the County, or say Shire), an imaginary being, without a real “habitation”—without anything but a “name.” For a specimen, but no more than a specimen, of the suffering—of the practical and too real suffering springing out of this theoretical and ideal confusion, see “Petition for Justice, § 14. Results of the Fissure—Groundless Arrests for Debt.” (Vol. V. p. 491.)

2. Secondly, as to the Serjeant-at-Arms. This functionary is a satellite, appointed on each occasion by the Equity Judge himself. How he came by this his formidable title, requires explanation. Once upon a time, some person or other having omitted to do something which by the Judge he had been bid to do,—his Lordship dreamt that a rebellion had been raised, which being admitted, an army became necessary for the suppression of it. Thence came the Chancery writ, styled a “Commission of Rebellion:” by which was meant—not, as in the case of a “Commission of Inquiry,” a commission to make the thing, for the making of which the commission was issued—not a commission to make a rebellion, but a commission to quell one. Commander of the army, or commander and army, all in one, this same Serjeant-at-Arms.

3. Lastly, as to the Sequestrator.a While, during a course of years, for the sake of the profit upon the expense, the Chancellor, with his myrmidons, was making believe to do that which, if so minded, he could have done, with next to no expense and vexation to anybody, in the course of some number of days or hours,—a sort of operation called sequestration required to be performed: and this, like other operations, required operators. Sequestration, the operation: sequestrators, the operators:—in these may be seen the “manipulus furum,” of whom the Serjeant-at-Arms was, in case of necessity, the Thraso.

For the purpose of giving execution and effect to a portion of substantive law,—and, to that end, for the purpose of giving execution and effect to the correspondent judicial mandate issued on the occasion of a demand made on the Judge for his appropriate service,—on that same occasion and to that same purpose, what is requisite is, that, into the hands of the Judge be taken either the subject-matter itself of the demand—namely, the mass of property or other benefit, of what nature soever it be, which is the object of declared desire; or else a person, who for shortness is called a defendant: meaning thereby a person, who, on the occasion in question, for the purpose in question, is assumed to be in possession of this same object, and prepared to defend himself, in that arena, against all endeavours to take the object from him: though the truth is—that, so costly in this field has the war been made, that out of a thousand, not one is there who, how justly soever entitled to the possession, would, if called upon, be able so much as to begin to defend himself in that same field, with any possibility of effectual defence:—say then the defendant, or proposed defendant, himself. But, this same person, or any person—to what end? to what purpose? Except where, the case being a penal one, the punishment appointed is such as requires the body of the individual to be forthcoming for the purpose of being subjected to it, no use is there for the body, but for the purposes of coming at, by that means, the valuable thing itself, which is the object of the desire.

To this end, the Dispatch Court Judge, if, meaning honestly, he has the power, will act according to the circumstances of the individual case. The demandant he has seen and examined, of course, at the very outset of the suit: this being the very operation from which the suit has received its outset. From this examination he will have framed his judgment as to what cource to take, for the purpose of securing, with the minimum of delay, vexation, and expense, to all parties, the eventual rendering of the service demanded; that is to say,—if, in his view, a preponderant probability has place, that the proposed defendant, unless prevented, will convey, out of the reach of the Judge, not only the subject-matter of the service demanded, but his body likewise, by means of which, in case of need, the compliance with the demand might be compelled, he will for this purpose cause hold to be taken—prehension to be made—of things moveable, things immoveable, and body—one, two, or all three, as occasion may require: mindful throughout, on no occasion to produce so much as one atom of evil, more than is necessary for the production of the preponderant good endeavoured to be produced.

[* ]Taking.] 1. By what hands, then, shall they be delivered into it?

2. To the situation of a judicial functionary of the grade of a Judge, a manual operation such as this is not congenial.

3. To the eyes of the Judge thus ousted of jurisdiction, the witnessing of it would be needlessly painful.

4. Not but that, for the wound thus producible, a precedent, or something very near to one, were it needful, might be found.

5. But no such wound is needful.

6. On the part of the subordinates, on whom the duty is here imposed of submitting to the operation, no such vulnerable dignity has place.

7. On this occasion, as on every other, whatever is done, the less the expense, in every shape, at which it is done, the better.

8. As to superordinates, they will know better than in any open and direct way to attempt to throw obstacles in the way of obedience on the part of their subordinates.

9. Here, then, may be seen—benefit maximized, burthen minimized. Turn now to the existing system: there may be seen burthen maximized, benefit minimized.

10. To exhibit, were it even no more than a rough outline, of the several diversifications of the course taken—taken by the existing system in general, and by the Equity branch of it in particular, for the attainment of these two conjunct sinister ends,—would require, for a basis, a sketch of the whole body of judicial procedure; including, in the Equity part of it, the two vast morbid excrescences—the Bankruptcy Courts and Insolvency Courts.

11. This being here impracticable, suffice it to say that it is by the observation of the opposite practice, as carried on under the existing system, and of the enormousness of the mass of evil produced by it, that the several preferences here recommended were suggested.

12. At the head of the mass stands the portion of it produced by the practice by which for the price set by Judges, to every man who can and will pay that price, the liberty of any and every other man is sold;—sold, together with the additional powers of involving in utter ruin men in countless numbers by a known and infallible process,—supposing him so lost to all sense of humanity and shame as to accept of the invitation—still, as well as for ages past, held out to him by English Judges. Such is the practice by which, on the ground of the false assertion of a debt due, to the amount of which there are absolutely no limits, the prehension of the person of a man, and in consequence the destruction of his commercial credit, may be effected: the act of inflicting the suffering not being preceded by any inquiry into the need of it; the need of it—that is to say, for any one of the three above-mentioned purposes of justice. In the practice of no other country, in so flagitious a form (one may venture to say), have depredation and corruption on the part of judges been seen to manifest themselves. For a brief, but to this purpose sufficient history, of the course by which this part of the system has been brought to its present state of perfection, see Petitions for Justice, Device XIV. Groundless Arrest for Debt.*

13. Root of this, as of every other abomination of judge-made and fee-gathering law, the original sin inoculated by it—exclusion of the parties from the presence of the Judge. Necessary not less to the minimization of the burthen to the defendant, than to the maximization of the benefit to the plaintiff, is information obtained by the Judge, as to the circumstances of the parties on both sides, and in particular on the defendant’s, at the very outset of the suit: for, on the state of the pecuniary circumstances of the defendant will depend the means which, for making provision for the execution-securing as well as for the execution-effecting purpose they afford: and, at that stage of the suit, no otherwise than by the word-of-mouth examination of the plaintiff can that same information be obtained:—of the plaintiff himself, or of any such representative of his, whom, according to his condition in life, the necessity of the case has on that occasion substituted or added to him.a

14. Of the thus all-comprehensive and hitherto unexampled extent here proposed to be given to the power of prehension, one natural enough consequence is—that, to a first glance, not only augmentation of the Judge’s power should present itself as a principal object of it, but, moreover, in a degree more or less considerable, detriment to the interest of the defendant, as the effect. On a closer inspection, however, it will be seen, that, by the variety of choice thus afforded, effectual service is rendered to the defendant’s, no less than to the plaintiff’s side:—whereas, under the existing system, burthensome to an outrageous amount as is the prehension actually performed, still more outrageously burthensome is the power, as above given, of performing it:—at any rate, by the option of substituting to a more a less burthensome mode of operation, no mischievous addition to power is effected: and, with not less solicitude has been looked out for—the mode of operation which will be least burthensome to the defendant’s, than that which will be most beneficial to the plaintiff’s, side.

15. As to security,—for the several modes in which, for the several above-mentioned purposes, it may be given, and the occasions on which it may require to be given, see Section XVII. Prehensor.

16. Minute indeed is the proportion, which the imagination of a non-law-learned reader could present him with, of the immense mass of expense and delay produced by the Equity practice in relation to this subject, with the correspondent probability of misdecision and unjust non-decision: in a word—of the imaginary rule of action thus feigned, the efficiency to all mischievous, mounted on inefficiency to all good purposes. Under the head of Sequestration, six pages in Madox’s Chancery, II. 20, 4to, 210, will suffice to exhibit to him a miniature picture of one part of this mountain of predatory abuse.

17. Suggestions have, of late days, been brought forward, having for their subject-matter imprisonment for debt, considered in the abstract; and for their object—on the face of them, if not at bottom—the abolition of imprisonment, to the whole of the length to which it can, on that same occasion, be employed. Supposing this to be the proposition, with as much reason might be proposed abolition of punishment on every occasion—of punishment in every other form, on the occasion of transgression in every other form. Without the discernment to see that exceptions are necessary, or without patience to attend to them—thus does sentimentality, regardless of the dictates of the greatest-happiness principle, apply itself but too often to the establishment of general and sweeping rules.

[* ]Since that work was printed off, the law on the subject has been materially altered by 1 & 2 Vict. c. 110.—Ed.

[* ]Exchequer.] Incidentally apply these same powers to the several Superior and other Common Law Courts: see above, art. 3. Also to the Ecclesiastical Courts: see below, art. 69 and 70.

[* ]Possible.] Say, in four words, Prehendenda are all prehensibilia.

[† ]Persons.] Note, on this occasion, that where slavery has place,—slaves, though persons, being considered and dealt with on the footing of things, they may become eligible subject-matters of prehension, as well as the land, on which they are, have been wont to be, and are about to be, employed.

[‡ ]Burthen to the defendant.] Example:—Among things incorporeal, or say rights, right of entering into an obligatory engagement of any kind; right to Judge’s service for remedy to wrong in any shape; rights, these, the prehension and consequent suspension or final loss of which is among the consequences of outlawry and excommunication, to which, antecedently to his appearance, and for the mere purpose of compellinghim to make such appearance, a defendant is subjected under the existing system:—subjected, at the outset of the suit, before any declaration is made, true or false, of the ground of the demand thus vexatiously made by the plaintiff; subjected to prehension thus relatively useless, things incorporeal and fictitious, in preference to, and to the exclusion of, all things relatively useful: that is to say, things really existing, moveable and immoveable.

[* ]Prehension.] Turn now to the existing system. Consequences, under the several above-mentioned heads, these:—

1. Purpose, execution-securing. Prehended instead of any subject-matter of property, applicable ultimately to the purpose of the suit, nothing but the body of the defendent: whereupon to prison he is consigned, unless security ab extrâ be found by or for him; security, and for what?—for compliance with the demand? No: but for his being ultimately consigned to prison,—a place which no more produces money than it does corn or potatoes. Consequence of the operation, the defendant’s pecuniary substance, in large proportion, is divided, not among creditors, but one part of it among lawyers; another part consumed in waste. Nor is the thus miserable and misery-producing security obtainable at the hands of an Equity Judge; only at the hands of a set of Common-Law Judges.

2. Preference the first: Things preferred to persons. Instead of this, Common Law prehends persons, and will not prehend any thing—employing this burthen without benefit, and the most instead of the least afflictive course. Equity enhances upon the system of oppression and depredation. Common Law prehends indeed the body, but does so in the first instance, and for comparatively trifling expense: Equity, not till after the party wronged has been loaded with vast and unbounded expense in possession, with still more vast in expectancy—the product of correspondently enormous delay: not prehending for the eventual use of the parties wronged any one thing it prehends—not so much as the body of the author of the alleged wrong, without defaming, oppressing, and plundering him, by force of a calumnious lie, by which a man, whose only crime or offence is poverty, is proclaimed guilty of rebellion—a capitally-punished crime.

3. Things moveable. For securing eventual execution, and thence at the earhest stage, or any stage antecedently to the latest, Common Law, or Equity, do not either of them prehend one. Common Law does in some cases, at the latest stage; Equity not even then.

4. Of the aggregate mass of immoveables, Common Law does not at the first stage prehend any part: at the last stage for execution-effecting, of any such part as under the name of leasehold is held for a number of years certain, it does indeed prehend the whole: of such part as is termed freehold, being held for a number of years uncertain, as being determinable by the cessation of a life, or the longest of a number of lives, commonly three, it prehends the half, and no more than the half; namely, by means of a writ called an Elegit: this by a process of division by which, whether anything valuable is or is notgiven to the plaintiff to whom it is due, no small quantity of his property, and the defendants’—of the property of the party wronged, as well as of that of the author of the wrong, is divided among Judge & Co.

5. Turn back now and seewhat, on this same occasion, will be the course taken by the Dispatch Court Judge.

Applying, all along, his careful attention to the above rules, he will look into the individual circumstances of the individual case, and those of the individual parties; and whatsoever they render it possible for him to do, this he will do, with reference to every one of the above-mentioned purposes.

Whatsoever, for any one of those same purposes, he can take with his own hands, he will take with those same hands: whatsoever he can take, but no otherwise than by other hands, he will take by other hands. By other hands: but by what? By unwilling ones? No surely: but by willing ones, so long as any such, who are also in other respects apt, are to be found. To Common-Law Judges or Equity Judges, as the case may be, he will leave it to try, or pretend to try, what can be done for the purpose in question by a set of hands, the main occupation of which, where it is not the sole one, is the taking of the money of both parties into their own hands, and putting the same into their own pockets.

[* ]Counter-security.]For the different shapes, or say modes, or forms, capable of being given to such security and counter-security, see Petition for Justice, prayer part, art. 35, 36, 37, (Vol. V. p. 501.)

No such counter-security does the existing system, in any of its branches, provide. Anciently, in the Common-Law branch, yes: but under the fee-gathering system, forasmuch as to all suits by those who were unable or unwilling to afford such counter-security a bar was thus put,—the bar was, of course, sooner or later, removed.

[* ]Efficiency.] Of this remedy, compare the effectiveness with that of a Bill in Equity; by which, at the hands of an unwilling defendant, at the end of five years, nothing more will have been effected than the elicitation of the evidence of that one individual, out of an indefinite number of individuals, of the evidence of all whom the elicitation may, for the purpose of the suit, be necessary!

In the aggregate of the matter of the xx. paragraphs of the instructional article 27, together with that of the articles 28, 29, and 30, may have been seen one part of the endeavours applied, in the here proposed system, to the alleviation and minimization of the mass of human suffering, liable to be produced, and in so large part unavoidably, by the hands, conjunctly or separately operating, of the Legislator and the Judge. By the opposite practice, as exhibited by the existing system, have these measures of relief, in almost every instance, been suggested. An end, which never has been aimed at,—nor, so long as the fee-gathering system continues in operation, ever can be aimed at,—how should it in any instance have been accomplished?

[* ]Evil-consciousness,] that is to say, the being apprised of the evil produced by the offence. Under Rome-bred law, throughout the whole field of delinquency, runs this distinction between evil-consciousness and insufficiency of attention; or say, in this case, inattention, heedlessness, or (from the Latin word temeritas, as employed in the locution temerè litigantes), temerity, or, in some cases, rashness: in the language of that law, unappositely is this distinction expressed by the words dolus and culpa; dolus (a word meaning deceit) being employed where no deceit is aimed at. Evil-consciousness, commonly called, in English-bred as well as Rome-bred law, by the uncharacteristic and obscure Latin appellation of mala fides; in Rome-bred law, also, dolus. Heedlessness, in English-bred law not named, and by English judges and other lawyers (such is their heedlessness) scarcely heeded; being confounded sometimes with evil-consciousness, sometimes with blamelessness. Of the distinction, prime in intensity, as well as extent, is the importance: blind to it have been at all times the founders of the fiction calling itself English Common Law: a defect, sufficient of itself to stamp upon the whole system the character of worthlessness, comparative at least, not to say absolute.

[* ]Coercion,] Parts of the mind, to one or other of which, whether for good or evil, human agency applies itself—the intellectual and the sensitive: to the intellectual applies itself every instrument by which deception is produced by means of fraud; to the sensitive applies itself every instrument which works by means of anti-legal physical force, anti-legal intimidation, anti-legal allurement: in the case of coercion, it is by force, or intimidation, that the effect is produced.

Note here the difference between anti-legal (or, as the word more commonly used is illegal) and anti-constitutional. Anti-legal means prohibited by the penal branch of the rule of action; anti-constitutional means unconformable to the constitutional branch of the rule of action. Corruption—in both its forms, the intimidative and the alluring—corruption, when power or opulence is the instrument of it, is, to a vast extent, not anti-legal:—as to anti-constitutionality, it is not contrary to what constitutional law is, however contrary to what constitutional law ought to be, and is falsely said to be. Suppose a tenant turned out of his farm or shop, and thereby consigned to ruin by his landlord, for giving a vote in a manner disagreeable to that same landlord: by such ejectment, corruption—namely, the intimidative species of it, is practised. In this, however, there is nothing illegal; nothing repugnant to that which the constitution is: how repugnant soever to that which the constitution ought to be.

[* ]Turn now to the existing system. There, on an occasion such as those above described, for the description of the offence, the locution commonly employed is—Contempt of the Court. This locution, as being loose and vague,—liable to be abused, and accordingly most abundantly and mischievously abused,—is on the present occasion, in the text of the Bill, purposely forborne to be employed. It might be employed—to justify incarceration, for discourse uttered by word-of-mouth or in writing; and thus—for that appeal to the Public Opinion Tribunal, to which no obstruction should in any case be opposed. Under the existing fee-gathering system, it is employed, as often as by the price put by judges on their appropriate services, real or pretended,—the impossibility of compliance with their mandate is produced. Having made a man poor, they proceed, and punish him for being so. For poverty,—for non-performance of impossibilities,—for an offence to which the Judge himself has given birth,—for these things it is that the Judge punishes. And, to oppression, adding insult and defamation, he punishes, for alleged contempt, where terror—the opposite to contempt—is certain, and contempt impossible.

[* ]See further on this subject, Section XXIV. Expense, how provided for, note.

[† ]If, in this way, throughout the whole field of litis-contestation, and in particular throughout the whole field of delinquency, the burthens, so far as the pecuniary circumstances of individuals admitted, were laid exclusively on the party in the wrong,—all factitious costs being, as upon the here-proposed summary system they would be, abolished,—not only might the party in the right be exonerated of all the expenses, to which, under the existing regular system, he is subjected by unreimbursed costs,—but, in no small proportion, might be defrayed that expense, the burthen of which is, under the here-proposed system, transferred from the back of the suitor to that of the Government, as trustee for the public at large. But, such is the power of that delusion of which words are the instrument, that, for a long time, a much less burthen than that which is endured with patience under the name of costs, might, probably, by men in large proportion, be bitterly and loudly inveighed against, if imposed under the name of punishment.

[* ]1. The topic of remedies being now, so far as regards the present purpose, at a close,—turn now to the existing system. Of the four species of remedies,—the originally-preventive and the suppressive are not here in question: remain the satisfactive, in which is included the compensative, and the punitive, or say the subsequentially preventive. In relation to these two, what then does the existing system? Of these two, for wrong in no shape does it so much as propose to itself to make provision of more than one. Sorts of shops, of which Judge & Co. are the shopkeepers, two: commodities sold, in one of them, a chance, such as it is, for money, which, when given in the name of compensation for wrong, they call damages; commodity sold in the other sort, a chance for the benefit produced by punishment; the enjoyment, such as it is, reaped by one man, from the contemplation of the suffering produced by punishment inflicted on another:—say, for shortness, the pleasure of revenge, or vengeance: and, in one of the shops, moreover,—namely, the King’s-Bench shop,—you may call for damages or punishment, which you will; but (what seems whimsical enough), both together, even at that shop, where both are upon sale together, you cannot have. True it is—that while, in consequence of your asking for it, they serve out to you a quantity of the commodity you ask for—namely, the chance for damages, they serve out to you along with it, a quantity more or less considerable, of that other commodity which you have not asked for. But, no thanks to them. They don’t know that they do so: they don’t know what it is they are doing.

2. It is not by them that the commodity you did not, is added to the commodity you did, ask for. Not by their hands is this addition made, but by the hands of Nature. It sticks on without their perceiving it, and thus it is that you come by it. Go to a plumber, and buy a quantity of lead: buying the lead, you buy the chance of a quantity of silver in it; but if there really be any, it is more than the plumber knows of: it was left in, to save the expense of taking it out; and, in the case of the King’s-Bench shop, where, under the name of justice, justice or injustice is sold, as it may happen,—whether the quantity of the suffering, which thus sticks to the damages, when actually served out, be sufficient for the purpose of the subsequentially-preventive remedy, is matter of accident. They know as little about it, as the plumber who serves out the silver with the lead, knows what use will be made of either: they know about the matter, as little as they care.

3. A natural question here, is—seeing this—that a shop is always open, where the two commodities may be had together, for the price of one,—the so much less valuable, along with the more valuable, and without any extra charge for it—how is it that, to any of the shops any man goes and gives his money for the less valuable article alone?

4. The answer is—that the difference depends upon evidence: upon the source, and thence the reputed quality, of the evidence which the party wronged happens to have at his command. For, according to the rules of the several shops, along with your money, you must, for the most part, for form’s sake, have at your command and exhibit a quantity of evidence: at any rate a something which, without being evidence, is by them received as and for evidence. The King’s-Bench shop has, as above intimated, two sides—the civil side and the penal side: on the civil side is sold the chance for damages: and there the evidence they insist upon is of a particular sort, regarded as a superior sort;a and if (such is your misfortune) you have none of this sort to produce, you must either go without remedy, or betake yourself to the other side: in this case, all you can have for your money is the pleasure of revenge; and for that, the shop you must apply to is either the penal side of that same King’s-Bench shop, or some other shop, where they have nothing better to sell than this same pleasure of revenge.b

5. But, of this commodity,—the chance of which is thus sold on the penal side, and is worth so little, and to a man who believes in the same creed as those Judges profess to believe in, worth absolutely nothing,—the price, though so high as to be out of the reach of the vast majority of the people, is still abundantly less extortious and unreasonable than that of the chance for compensation.

6. Under the existing system, “no wrong is there that has not its remedy:” such is the aphorism delivered by Blackstone, and ready to be repeated by all those in whose minds law learning has extinguished the sense of shame. “No wrong is there that has its remedy:” this aphorism is not indeed exactly true, but it is beyond comparison nearer to the being so than its above-named opposite.

7. That which, on this occasion, was undertaken for, is an indication given of the inadequacy of the provision made, under the existing system, by Judge-made law, for remedy to wrong in the several shapes of which it is susceptible, together with some general intimation of the causes by which such its worthlessness has been produced: of two of these causes, such general intimation has here been afforded: namely, the absurdity of not so much as attempting to administer any more than one of two remedies, where the nature of the case admits of and requires the application of both; and the still more flagrant absurdity of shutting out or letting in the one and the same evidence,—that is to say, the testimony of one and the same man,—according as it is the one sort of remedy or the other that, if admitted, he would apply for. As to what regards this latter absurdity, further particulars belong not to this place; but they may be found in ample abundance in the Rationale of Evidence.

[* ]Immaterial.] 1. Not so as to lawyers, professional or official. This supposed £20,—let it be instanter, and by the order of the Dispatch Court Judge, that it is paid,—the £20 is £20, and no more: let it be paid, not till after the fiat of a jury has been obtained for it,—the £20 is £50 perhaps, perhaps £100, the difference being distributed among these same lawyers: how many more hundreds—is what, till after the event, no man can have any assured ground for saying.

2. Damages without a jury! Trial by jury set at nought! Palladium of English liberties invaded! Arbitrary power—power, till now unknown to the Constitution—conferred on Judges! Constitution subverted! Chaos come again! Theses these amongst others, for declamations by learned scholars. Closely interwoven with the heart-strings of common lawyers, is the love of jury-trial: how could it be otherwise? for of this love, the root is now laid bare.

3. In another work of the author’s,—namely, his Procedure Code, Chap. XXIII., the subject of Jury-Trial is treated of at large: and a substitute for the present system provided (in Chap. XXVI.) under the denomination of a Quasi-Jury. According to the plan proposed,—at the instance of a party on either side, or of the Judge himself, all benefit derivable from the employment given to a Jury is afforded by use of the body styled as above, a Quasi-Jury; of which, for minimization of the expense, the number is minimized, and by which is possessed every power possessed by a Judge except the decisive power styled the imperative: this being reserved to him in consideration of his superior intellectual aptitude, and for the sake of laying on his shoulders responsibility in its fullest state.

4. But the mode of procedure, to which the Dispatch Court is the experimental substitute, being one in which no Jury is employed, the non-employment of a Jury could not be urged as a ground of objection to it: and on the present occasion, an object highly desirable was the maximum of simplicity:—an object to the attainment of which no small obstacle would have been presented by the addition of the ulterior institution of a Quasi-Jury.

5. In the here-proposed system, is there any degree or sort of difficulty? any sort or degree of danger? or of probability of evil consequences? In the here-proposed system, no. In the existing system, ifyou wish to find it, you must look for all the difficulty, for all the mischief; and not in probability, but in certainty.

6. Difficulty! in what should it consist? What is required is, that on each occasion a man should judge as he would in his own business, between his own children, or his own servants, in his own house. In so judging, wherein consists the extraordinary difficulty? If really any such difficulty have place, where is it that it commences? Between the state of things which forms the matter of the domestic, and that which forms the matter of the forensic mode and course of procedure, the only differences are those which regard the number of the persons, and the extent and number of the places concerned, and the powers for effecting execution of orders and elicitation of evidence. But, for effecting execution of orders and elicitation of evidence, powers no less sufficient than those which within its field of action the domestic tribunal possesses, and much more ample and effective than the existing tribunals all together possess, are by the supposition given to the here-proposed forensic tribunal. These powers being by the supposition possessed, at what addition to the number of the persons, at what addition to the amplitude or number of the places, subject to the authority of the domestic tribunal, should the difficulty supposed to have place in regard to the business of the forensic tribunal commence? In these may be seen questions to which it belongs to the objector to find answers: and in the finding any, rational and satisfactory,—here indeed it may well happen to him to experience no small difficulty.

7. Danger? probability of evil consequences? Under the here-proposed system, absolutely none: under the existing system, not merely probability of evil consequences, but certainty:—yes, absolute and unhappily abundant certainty; if factitious delay, expense, and vexation, not to speak of misdecision, and non-decision where decision is due,—are evil consequences.

[* ]Ends, sacrificed to means,—gnats strained at, camels swallowed;—inconsistencies in endless tissue:—such throughout is Judge-made law.

[† ]1. Note here, that, in several of the above articles, may be seen so many specimens of the matter of the proposed Penal Code, Book or Part I. Offences collectively considered: the remainder of which, namely, Part II., is contained under the head of Offences severally considered.

2. In the accompanying Table, are exhibited the contents of this first part, in and by the titles of the several Chapters: for the present purpose, to the words employed in the original Table, are added here and there a few words of explanation, Annexed to each title is proposed to be, if time and space admit,—a reference to that article of the present section, which presents to view a sample of the contents of it.a

3. Not altogether uninstructive (it is hoped) will be the comparison, if made, of the here-exhibited matter and titles of the proposed Code—with the matters and titles of any work by which, under the existing system, the Penal branch of law is undertaken to be exhibited, and exhibited accordingly, as it is, or, as it is said to be: Law—as it is, namely, Statute law, or say Parliament-made law: Law as it is said to be, namely, Fictitious Law, or say Common Law, or Judgemade Law. Instructive, in no small degree, the comparison—between the anxious and continued regard paid to human feelings throughout the one; and the utter disregard throughout the other:—to human feelings, that is to say—to pain and pleasure—(for the several diversifications of which, in the little work intitled Table of Springs of Action, determinate denominations have been found and employed)—disregard, in a word, for everything but the sinister interest of the framers, contemplated through the medium of the technical words and phrases of which the gallimautrey is composed.

4. In Book or Part II., containing Offences severally considered—under the head of each offence, application is made, of the matter of the greatest part of Part I.: application, that is to say, either by quotation or reference.

5. Of the penal matter employed on the present occasion, no part is there, which is not in and by that same proposed Penal Code, employed likewise and applied on other occasions; but in the ulterior and more extensive use so made, no sufficient reason was seen for omitting, on the present occasion, to make application of it to the present particular use. Being, however, necessarily modified, and in many instances more or less changed, in subserviency to the present special purpose, the several articles are not to be considered as exact quotations from the work at large. By the being thus presented to view as having been applied to a more extensive purpose, the matter will not (it is believed) be found rendered the less applicable to the present purpose.

6. But for the determined withholding of encouragement in every shape from above,—by the mere assurance of appropriate attention, effective encouragement would have been administered, and that same Penal Code would, many years ago, have made its appearance in a complete state.

7. On a late occasion, forgery considered in its application to no other modification of the offence than that by which property is affected, furnished of itself matter for a large folio: and of the ground which, as may be seen here, no more than a part of one single page sufficed to cover, no more than a part was covered by the hundreds of pages of that same folio volume. What, no that occasion as on others, was not considered, is—that forgery, in the whole of its extent, is but one modification of the art of deception;—and that, of all the offences, actual and possible, in the calendar, there is not one, in and to which this baneful art is not capable of being rendered instrumental and suxiliary. Constructed on the condensed plan here exemplified, a Generally-applying Code (so called in contradistinction to a System of Particular Codes, applying to so many different classes of persons)—or say, for shortness, a General Code—may be composed of no more than one or two octavo volumes, and yet be perfect: constructed upon that present pursued plan, it may be composed of so many hundreds, or as many thousand volumes, and still be imperfect. The Penal Code at large is in preparation and considerable forwardness. But, as already intimated, not exactly the same as those here employed, are the terms and method there employed. By the application here made of the principles,—abridgment, and alteration, in other respects, were necessitated.

[* ]Elicit evidence.] In relation to this subject, see Constitutional Code, Vol. I. Chap. VI. Legislature, §27, Legislation Inquiry Judicatory.

[* ]Power to elicit evidence, omnigenous, unaquâque:—by these few words, may be kept in memory the matter of these three articles, 63, 64, and 65.

To this Judiciary part of the Act belonged the operation of instituting the powers relative to the elicitation of evidence; to the Procedure part presently ensuing, belongs the operation of directing the application to be made of those same powers.

[† ]Certainty.] 1. Under the existing system, uncertainty is at its maximum.

2. Take for example the case of perjury, in the course, or on the occasion, of a suit: to authorize conviction, two witnesses, or what is regarded as equivalent, being at present made requisite,—and the expense of prosecution being such, as persons in comparative number extremely small add to the will the power of defraying,—the consequence is—that, of many thousands of instances, in which the offence is committed, not more than one is prosecuted for.

3. Under the existing system,—not from the Judge but from the party, in all cases called civil cases, comes the demand for evidence. Before application made for the subpœna (as it is called)—that is to say, the evidence-requiring mandate, the solicitor of the party to whose interest in the suit the evidence is regarded as serviceable, enters if he can into conversation with the supposed evidence-holder, and performs with him a sort of preparatory rehearsal.

4. Mark now the effect of this state of things: that is to say, of the power of producing misdecision through deception, which it places in the hands of a dishonest evidence-holder.

5. An evidence-holder, whose evidence is necessary to right decision, is inimical (suppose) to one of the parties. By the existing system is put into his hands a sure mode of affording gratification to his ill-will at the expense of justice.

6. His testimony, supposing it truly delivered, would it be favourable to his intended victim?—he either refuses all communication with the inquiring agent, or by falsehood represents it as being unfavourable: and, to this falsehood, it not being uttered upon oath, nor in any other way punishable, complete and sure impunity is thus secured to the author of the device. On the other hand, will the testimony, in so far as true, be unfavourable to the destined victim? If yes, the evidence-holder enters into conversation with the aforesaid agent, and furnishes him with such false information, as, by its apparent favourableness, engages the aforesaid victim to become or continue, party to the suit: party, on the plaintiff’s or defendant’s side, as the case may be.

7. At the trial, being now upon his oath, he says nothing but what is strictly true.

8. Consequence to the thus described victim, loss of cause: thus is the caught in a trap, and perhaps ruined.

9. And in this trap may any man be caught by any other man who will be at the expense of thus baiting it.

10. From this trap,—the sort of wisdom and probity which so eminently characterize the existing system have concurred in excluding all means and possibility of escape.

11. When the dishonest witness comes upon his examination before the Judge,—you (the party injured by him), may you make known his dishonesty?—may you bring forward any evidence, or give utterance to any observation, the effect of which might be to cause him to appear to be what he is?—Not you indeed: this would be—to “discredit your own witness:” and, says the Common-Law rule, “you must not discredit your own witness.” This (says the reason of the rule) would be as much as to say he is not trustworthy; which having said, you are thereby estopped from saying anything to the contrary of it:—as if the human species was composed of two distinct sub-species; one that never told anything but truth; the other, that never told anything but falsehood.

12. Behold now at its height the triumph of law over justice! Behold now the indiscriminate defender of right and wrong, with the constant predilection and partiality for his more munificent custom—behold him in all his glory: behold him pouring forth his torrent of reproach, obloquy, and contumely, on the party, who to his knowledge is in the right,—and the praise of probity and injured innocence on the dishonest wrong-doer, by whose villany, with the assistance of his hirelings, the ruin of the destined victim has thus been accomplished.

13. Give the reins now to imagination. Scene a tavern:—Behold the partie quarreé: 1. The so successfully dishonest suitor; 2. The ingenious witness—his accomplice: 3. Their experienced and expert attorney; 4. Their learned and long-robed confidential advisers—all laughing, chuckling, and jesting, over the convivial bottle.

14. “He spoke falsely on one occasion, ergo so he will on every occasion.”—What logic!—as if the same man who would speak truly when he saw more to fear than to hope from speaking falsely, might not speak falsely when he saw more to hope than to fear from speaking falsely; as if the accident of having been a percipient witness of this or that matter of fact, had for its proper consequence the putting him into the power of whosoever happened to have need of his testimony, and this so completely, that a lawyer might with truth and propriety say of him, to the party whom he is hired to do injustice to, this man is your own witness:—as who should say “this horse is your own horse,” or “this ox is your own ox!!!”

15. Excluded by this article will be—all exclusion put by the existing system upon evidence on the ground of security against deception. For a demonstration of the impropriety of all these exclusions, and an indication of the ways in which deception, instead of security against deception, is produced by them, see Rationale of Evidence, Book IX.

16. Nor, of enlightenment, applied to this subject, is there any want of precedents in existing practice. For inquiring into the state of the law, with a declared view to its improvement,—three separate commissions, to so many different sets of commissioners, have been issued within these few years. In every one of these commissions a power to this effect stands included. In no one of these commissions is to be found so much as a single instance of application made of any of those exclusionary rules, of which the mass of the matter of Common Law on this subject is, in so large a proportion, composed.

17. As little are any traces of regard for them to be found in the practice of the two Houses of Parliament and their committees, whatsoever be the subject of the inquiry.

18. If, to the exclusion put upon these same exclusionary rules, by each of these three component parts of the legislative body, acting separately, no reasonable objection can be made,—with how much less reason can any objection be opposed to this same arrangement, if the authority of the whole of that supreme body be thus employed in the making of it, as it will have been if this Bill passes into an Act?

19. Under the existing system,—whether on the score of verity, a piece of evidence shall be elicited or not, depends upon the name given to the Judicatory in which the suit has place, and the course of procedure that happens to be pursued in it. In a Judicatory styled an Equity Court, the testimony of a party is excluded when spontaneous, and allowed to be extracted, and thus admitted, when reluctant: in a Judicatory styled a Common-Law Court, it is neither admitted when spontaneous, nor allowed to be extracted when reluctant.

20. Think now of the quantity of injustice, and of human suffering in consequence, which, from the origin of the existing system to the present day, cannot but have flowed from this one source!—from misdecision thus produced, obviously; from non-decision for want of legal demand, not so obviously, but not less incontestably:—by exclusion put upon evidence, which if admitted would have been veracious and effective,—right, in all its shapes left undemanded; wrong, in all its shapes, left unchecked by remedy: by remedy in any one of its shapes—preventive, suppressive, satisfactive, punitive.

[* ]Productive of additional benefit to justice would be—an additional arrangement, for drawing upon the public purse, for evidence from this source, when the parties, one or more of them, are in a state of pauperism: in the principle on which the proposed practice is grounded, as per Constitutional Code, Ch. XII. Judiciary Collectively, § 13, Justice for the Helpless.

Even under the existing system, precedents applicable to this purpose are not altogether wanting.

[* ]Ecclesiastical.] A natural enough question here is, why include those Courts? Without this reinforcement, will not the opposition from the Equity and Common-Law Courts be sufficient? Answer: By the insertion,—notice of the opposition is given to the people at large, and to Equity suitors in particular; and their attention is thus called to the obstacle which they have to surmount; of this obstacle, were it not for this warning, they might not be sufficiently aware.

[† ]See Art. 3.

[* ]1. By the Equity Courts, from first to last, power, legislative in effect, though in so inconvenient a form, has been exercised:—to wit, by the establishment of rules of action, in the establishment of which the King in Parliament—the only supreme legislative authority recognised as such—has borne no part.

2. Not content with this, they have of late years, declaredly, and without disguise, overruled acts of Parliament to a vast extent. Witness the statute of claims, the statute of frauds, the statute for affording protection against undocketed judgments, and the register acts. See Tyrrell, 306. Repealed is the word this most enlightened and beneficently-intentioned professional and official lawyer employs, on this occasion, without scruple. In regard to tithes,—“everything has been presumed,” say the Real Property Commissioners, Report I. p. 64, “to disturb enjoyment, and stir up controversy.” And again, p. 68, “the frequent instances, in which, by technical rules, never understood but by lawyers, the intention of the testator, which Courts always profess to observe, is completely defeated, are a reproach to our law.”

3. The circumstances in which, on the part of the legislature, this anti-constitutional insubordination, confusion, anarchy, and uncertainty as to all rights and obligations, have had their cause,—apply not to this case alone, but to Judge-made law throughout the whole of its expanse: and have accordingly, on many an occasion, been brought to view elsewhere.

4. States of the mind, to which these evils may be referred, are—partly indolence and negligence,—partly sinister interest. Legislators, regarding themselves as having a community of sinister interest with Judge & Co., give themselves thus, by connivance, the advantage of establishing, by the hands of Judges, in an indirect and unobserved manner, and without drawing the attention of the people at large upon the subject,—many an arrangement, which self-regarding prudence might have prevented their attempting to establish by their own hands.

5. Resistance to any arrangement to the effect thus proposed, may accordingly, without danger of injustice or error, be considered and stated as conclusive evidence of a wish and endeavour to give strength and extension to absolute, under the mask of limited, power, in the hands of the ruling one, and sub-ruling or co-ruling few.

6. Any one of a number of words would,—if that same arbitrary power were not obstructed, as it is, by the correspondent and opposite arbitrary power of relatively ignorant men in the situation of jurymen,—suffice to give to these Judges an unlimited power of virtual legislation.

7. In their hands, the word libel would of itself suffice to place the press on the same footing as that which it is on in Spain and Portugal.

8. The word conspiracy has for some time been making its progress over the field of penal law, and is capable of converting into a crime any species of act, on account of which, it is the will, determined by the sinister interest or interest-begotten prejudice, of the Judge, to inflict punishment on any individual by whom that same act, how completely soever innoxious, has ever been done.

9. No wonder that it should be more agreeable to Judges to see the manufacture of the rule of action in their own hands, than in those of the legislature: to Judges, and to all members of the legislature, who, in their own view of the matter, are, as above, linked with Judge & Co. by the tie of a community of sinister interest.

10. As a material and local field is covered by webs, spun out of the bowels of spiders,—so is the logical field of law covered with nets, spun out of the brains of Judges—and more particularly of English Judges.

11. Thus it is, that over so vast a portion of the whole extent of the rule of action, the mind of the Judge is either the best or the worst source in which it can originate: the best, when untainted with, or purged from, the impurity infused into the situation by the fee-gathering system; the worst, when infected and polluted by that all-corrupting contagion.

12. From these considerations has been deduced, a plan for preserving the rule of action,—when brought from the state of Judge-made law, into the state of a code,—from being covered over with a fresh growth of that same imaginary and spurious law.

13. To the general propositions laid down by Judges, in the delivery of their judgments,—as well as to the tenor of those judgments themselves,—it would be made matter of duty, to every Judge, as often as he saw, in the text of the Code, a passage presenting a demand for amendment—whether defalcative, additive, or substitutive—to apply a proposed amendment, expressed in the very words, in which, if approved, it would stand as part of the act to which it applies itself: exactly in the same way as that in which an amendment is applied in and by a legislative body: in which case,—in so far as, by the only legitimate legislature approved,—it would be aggregated to, and become part and parcel of the body of the Code. In relation to this matter may be seen, in terminis, a string of provisions in the proposed Constitutional Code, when published: to wit, at Ch. XII. Judiciary Collectively—§ 20, Judges’ eventually-emendative function.

14. By so simple an expedient, and with such entire certainty, will be accomplished—that state of things, the accomplishment of which, in the hope and endeavour to prevent it, men in such numbers have been so forward to declare impossible.a

[* ]Body-adduction.] Part and parcel it is of the here-proposed system, to employ for appellatives to all the several judicial mandates and other written instruments of procedure, locutions expressed in the mother-tongue, and rendered as extensively intelligible as possible, instead of words such as Habeas Corpus; or scraps of words, such as Ca. Sa. or Fi. Fa. having for their effect, not to say for their object, the contributing to render the rule of action—the declared standard of obedience—inaccessible to those at whose hands obedience is called for, and on whom, in case of non-performance, punishment is inflicted. Under the existing system, this vile jargon, by which mystery and a semblance of science are made out of nonsense,—and which, in proportion to its maleficence, should be an object of abhorrence—is rendered an object of as much respect, as by sinister interest, interest-begotten prejudice, and authority-begotten prejudice, can be procurred for it. To the peculiar terms of botany this sort of translation has for this long time been applied. Say peculiar in preference to technical: the appellative technical having, by the maleficent application made of it by lawyers, been brought into such merited disgrace. Of an innovation correspondently beneficent, the present occasion furnishes a convenient opportunity of exhibiting an exemplification.

[* ]Necessary.] 1. Of the necessity of all this precaution, the persuasion has for its ground the observation made of the rooted habit of insubordination, which, under matchless constitution, has place, on the part of the Judges of the Superior Courts, in relation to the legislature.

2. In two distinguishable shapes does this insubordination show itself: not only muffled up in a covering of technical jargon, as in the case of a decision on grounds foreign to the merits (as to which see Petitions for Justice, V. 476); but, even in an open way, by decisions, on the occasion of which, disobedience to Acts of Parliament is explicitly and undisguisedly avowed.

3. In the practice of the Earl of Eldon, when Chancellor, an instance of it may be seen in the pamphlet entitled “Indications respecting Lord Eldon,”a (V. 348.) No want on the part of the learned fraternity of lawyers will there be of exertion to frustrate the object of this act. Their endeavours must be anticipated and provided against. For further example of what is capable of being done in this way, behold a case which happened to fall within the cognizance of the author of these pages. Needful for a public purpose was a piece of land to be bought by government. Attorney-general, the now Earl of Eldon: Solicitor-general, the now Lord Redesdale. Under their joint care was drawn an instrument necessary to the obtaining possession of the land: reluctance on the part of an occupier was necessary to be provided against, and power of seizure in a certain event provided. In a certain case, yes: but in what case? In the case of “refusal,” said the instrument: in that case and no other. What was the consequence? That an occupant had but to sit silent and inactive, forbearing to signify any refusal; and there the business would have ended, unless King, Lords, and Commons, had been set to work afresh, to set it a-going again. After much entreaty, with no small reluctance, these pre-eminently learned persons were induced to make the requisite change. Of this inaptitude of expression, where are we to look for the cause? To inaptitude in a moral shape, or to inaptitude in an intellectual shape? In a moral shape, in one; in an intellectual shape, in both—was the hypothesis of one who was a sufferer by the delay: on the part of both, the indescribable and continually-declared horror, of all change is matter of notoriety:—horror of all change;—in other words, anxiety to preserve from diminution the aggregate mass of human suffering, leaving it to receive increase from the undisturbed action of all those causes, by which it has been raised to the height at which it stands. These things considered, figure to himself who can, the agonies into which they will be thrown by the prospect of a Dispatch Court!

4. By the hands of Judges the ruling and influential few are thus enabled to serve their own particular and sinister interest, at the expense of the interest of the subject-many, in an oblique and unperceived course, in cases in which shame or even fear would prevent them from doing so in a direct and avowed way.

5. The emblem of the cat’s paw is thus in some sort realized: in some sort,—but with this difference: in the fable, it was not without reluctance, nor without smart, that the quadruped lent its hand: whereas in the case of the bipeds, no smart is ever felt, nor consequently any reluctance: in the stock of the ready-roasted and tempting chesnuts they got their full share.

6. This community—of feeling, and sinister interest, and conduct—can never be too frequently brought into nor too distinctly and conspicuously held up to view.

[* ]Machinery.] 1. In relation to the existing regularly-proceeding Judges,—consideration had of the situation and circumstances in which they are placed, in respect of sinister interest, interest-begotten prejudice, and authority-begotten prejudice,—the opinion which, on this occasion, must be assumed and acted upon by the legislature, cannot consistently be any other than that, for preventing the endeavour to frustrate the establishment of the proposed summary system, nothing short of a full persuasion of the impossibility of success can suffice.

2. Unfortunately for all parties—for the community at large on the one part—for the fraternity of the men of law, taken in the aggregate, on the other,—no satisfactory compensation does the nature of the case admit of their being made to receive:—for the pecuniary suffering, the official branch of the order, yes; but the professional branch, no:—for the suffering in point of estimation and influence, neither the one branch nor the other.

3. Think of Sir Ilay Campbell. Rather than see the Judicatory of which he was President cut in two, and himself reduced to preside over no more than half of it instead of the whole, this President of the Supreme Judicatory of Scotland divested himself of the whole.

4. Yet in this case no defalcation had place in the article of estimation: in no such character was he held up to view as that of a man whose sole title to esteem at the hands of the community was the habit of proceeding, during the whole of his official life, with more or less skill, in a course adverse to the welfare of the community in respect of the ends of justice.

5. In this state of things, that for the frustration of the design all imaginable engines will be set to work, from all quarters, is the assumption that ought to be acted upon.

6. In the instance of any one or even more of the persons so situated, suppose—not only no obstruction purposely opposed to the introduction of the proposed system, but even aid actively and zealously given to it; still, by no such phenomenon would disproof be offered of impropriety on the part of the general rule: a true hero, in this civil line of public service,—a true hero would any and every such functionary be: but men of ordinary not of heroic mould, are the men the existence of whom should, on the occasion of this, as of all measures of legislation, be assumed and acted upon.

7. Among the devices employed for this purpose, by a man of this fraternity, will of course be—the strutting upon paper, and swelling and looking big, in Houses Honourable and Right Honourable, like a Cæsar, an Alexander, or a Bombardinian on the stage,—or a turkey-cock in a farm-yard,—with scorn and indignation poured forth against the affront put, by any suspicion of this kind, upon his honour and dignity.

8. Suspicion? yes: but for this there is no help: for it is by the nature of things, or say by the nature of man, that the suspicion will be stirred up. Suspicion, and thence resistance to the force of his authority, in the event of its being employed in any such endeavour as that of frustrating this plan of beneficence and justice.

9. Affront? true: but from every such affront it depends upon himself most effectually and completely to preserve himself: and that by so simple and easy a means, as the negative act—the act of abstaining from all such endeavours as his situation exposes him to the suspicion of wishing to use.

10. Not but that, from all humiliation not indispensably necessary to the effectuation of the design, the existing superior authorities have, all of them, by the course thus taken, been carefully preserved: on no occasion, by any functionary so situated, is any operation called for: only at the hands either of this or that subordinate of theirs, or of individuals in the situation of suitors.

11. Pursued in this case is the pattern, set by the Equity Judges, when over-ruling, and reducing to nothing, the power of the Common-Law Judges. Not to those same Judges themselves, but to the suitors in their respective judicatories, were the mandates of the Equity Judges directed.

12. Thus it was—that, by the Equity Courts, greater delicacy was exemplified in their deportment towards the Common-Law Courts, than by the Common-Law Courts to one another.

13. When, from the Court of Common Pleas, the cognizance of a suit is transferred to the Court of King’s Bench, error is in so many words imputed to the Judges of that inferior Court.

14. So, when, from the Judges of the Court of King’s Bench, in some cases to the Judges of the two other Common-Law Courts sitting in the Exchequer-Chamber, and thence to the Lords; in other cases, directly to the House of Lords.

15. But, on the conduct of no one of all these dignitaries, will any imputation of error be cast in any such direct way, by a Judge of the Dispatch Court.

[* ]In the procedure part, under the head of Subsequential Evidence elicited, the principles respecting the elicitation are prescribed; but the present being the place allotted to the powers given to the Judge, here is the place in which, in the first instance, mention requires to be made of the corresponding checks.

[† ]1. As to the check thus applied to the power of the Judge,—in the eyes of corruptionists, and all other persons, if any there are, who are wedded to the existing system, far from affording an answer to any objection on the score of the magnitude of the power, it will operate as an additional objection: forasmuch as, in so far as it has this effect, it establishes what in such eyes will, of course, be a bad precedent; having for its tendency, the reconciling the public mind to the idea of subjecting to eventual punishment, and thereby to present and actual controul, those who, in the existing state of things, are not by law subject, in effect, to punishment or controul in any shape.

2. The greater the power a man has of doing wrong, the less likely is he to do wrong;—such is the vulgar theory; till at last, when you come to the highest pinnacle in the temple of power, there you behold a being perched upon it who is under an absolute personal incapacity of doing wrong in any shape—a being who could not do wrong, were he to labour at it with all his might:—and, under matchless constitution, upon this assumption is government founded.

3. The King is impeccable; the House of Lords is impeccable; the House of Commons is impeccable: and yet there are not three impeccable, but one impeccable—the Parliament. The House of Lords is legion; the House of Commons is legion; but these are legions, not of unclean, but of the very cleanest spirits. Whosoever would find favour in their sight must thus think, or pretend to think, of the constituted authorities. Of unintentional error, a successor of each official or other influential person may be susceptible; of intentional error, of evil-consciousness, not: neither of the one nor the other, the actual incumbent.

4. Intentional error or misconduct in any shape, especially in that shape in which it has place every day on the part of all,—that is to say, departure from the law of veracity and sincerity,—is universally held a good ground for a man’s subjecting himself to the risk of being put to death by a disputant, for the chance and hope of putting to death that same disputant.

5. Neither on this occasion, nor on any other, should the utter impunity secured to Judges under the existing system be ever out of mind. Urged by remorse, or any other less difficultly supposable cause, should an English Judge court punishment, his prayer would not be granted. Nemo auditur, perire volens—is among the maxims of Rome-bred law: in English law, it would not be cited, but the benefit of it would be granted.

6. If in large proportion men were not found silly enough to give credence to absurdities in the shape above pointed out, men would not in so large a proportion, not to say universally, be found possessed of the effrontery necessary to the giving utterance to them. But forasmuch as every man perceives that it would be for his benefit to be regarded as possessor of absolute perfection, or something little short of it, and his pretensions would find no opponent in any other man whose pretensions to it he does not oppose,—hence it is that by common consent—by an agreement, not the less effectual for being tacit,—every such man gives false evidence in favour of other, and by this evidence the unreflecting multitude of people without doors are, in but too large proportion, deceived and dealt with accordingly.

7. Thus would the check provided threaten them with the prospect of seeing themselves divested of the power of exercising depredation and oppression without stint: that power which so lately, by the influence of Lord Eldon, Lord Tenterden, and Mr. Peel, obtained at the hands of Parliament, in addition to those motives which can never be wanting: the means of heaping affliction on affliction, on a class of men distinguished from all others by the distress under which they were labouring: namely, by the power of imposing on them taxes without stint; this, for the purpose, and with the effect, of putting the money into the pockets of the learned collectors.—See Indications, &c. V. 348.

8. For, in one of the ways or modes in which subordination is established, in relation to this newly-invented sort of Judge, would—not only the Chief Justices of the Common-Law Courts, but the Lord High Chancellor himself, be unavoidably placed in a state of subordination.a

9. Manifest, it is true, to the eyes of the Chief Justice of the King’s Bench could not but be the state of subordination in which, in the more direct and conspicuous mode, the newly invented functionary, placed, as above, over his head, will be reciprocally placed under him. Still, by what he gained in this way, far from adequate would seem to him the compensation for what he would lose in that other way.

10. For, in no instance could the old established dignitary inflict punishment or pronounce sentence on conviction on the new intruder, without presenting to the imagination of the people at large, a scene, in which he himself would be acting the principal character, while undergoing that same humiliation.

11. Consequence, of course,—from the great Westminster-Hall volcano, now at least, if not before, a volley of explosions:—explosions of learned gas from all quarters.

i. “All this immense mass of power! a mass so absolutely unprecedented! and to whom?—to such an upstart creature of the fancy, as this imagined Judge:—power, over every member of the community, the King alone excepted: power, over everybody, even to the purpose of punishment: power, over the head of the law!—power, and for the declared purpose of superseding his authority!—Constitution subverted! all good order—order itself destroyed, and confusion substituted.

• “Blush! blush, thou sun! Start back, thou rapid ocean!
• Earth! mountains! valleys! all commixing crumble!
• And into chaos pulverize the world!
• For Grimgribberian has received a blow!
• And Chrononhotonthologos shall die!”

ii. “And the inconsistency! the monstrous inconsistency! The thus constituted supreme dignitary, to whom this immense and unprecedented mass of power is given, made to answer to interrogatories! subjected to a treatment, to which the Common Law, in its matchless humanity, suffers not the vilest criminal to be exposed!” Thus far for the ears of the lay-agents.

iii. Then, in a whisper, to learned brethren—“What a precedent this! At this rate, where is the criminal that will escape?—at this rate, a man really guilty will have no chance! He will confess at once!—all our learning, all our ingenuity, all our eloquence, will be of no use to him! Think of the learned pockets!—think of our pockets!—think of the vacuum this will make in them! Instead of coming to us, as at present, his money, if he has any, will go to the party he has wronged! What can be more contrary to the very first principles of justice, to every principle of justice?”

iv. And then there is the ex-officio information! Look at these reformists. At one time thus crying out against it; now they are giving employment to it!

v. Then there is the Chief Justice of the King’s Bench enabled now (and as to his willingness, can it at any time be doubted?) to wreak his vengeance on the intruder, by whose upstart power, judiciary authority is in all its established shapes laid low. And to enable him to give himself this regale, what is there wanting, but an invitation from Mr. Attorney-General?

vi. Then sits a jury. But, with the united eloquence of the Lord Chief Justice and the Attorney-General, the mouth-piece of the Crown, thus enlisted together in support of a cause so much their own, where is the Jury that will be able to stand against them? What word can possibly present itself to their tongues other than the word Guilty?

12. Tantalizing, in a sad degree, will thus be the situation of a Chief Justice of the King’s Bench. No otherwise could he root out the effectually responsible power of the Dispatch Court Judge, than on condition of thus undermining his own irresponsible and arbitrary power, that power of maleficence without stint, the loss of which is to every possessor of it, naturally so intolerable.

13. Think of a Lord Tenterden, thunderbolt in hand; and, opposite to and under him, a Sir James Scarlett, calling upon him to hurl it at the head of the devoted Salmoneus!

14. So much for learned objections. Now, at the sound of plain sense, behold them vanish. Each taken separately,—strong, it must be confessed, are the two antagonizing powers. Put them together, and, like the salt with which our food is seasoned, the elements they are composed of put off their corrosive nature, and become mild and salutary.

15. Out of the two dangers is formed security. The old established functionaries will not suffer anything;—and as little will the new created one.

16. As to subjection to interrogation, what danger to innocence is it pregnant with? what consequence, worse than that of clearing it of any imputation that may have been cast upon it?

17. From what source did these objections ever spring, other than that of a wish to afford to guilt, in every shape, an encouraging chance of escape?

18. As to the two Giants—the Chief Justice and the Attorney-General, grim as they are on all occasions, on the present occasion behold them thus rendered not only less grim, but motionless: Motionless! Yea, even as Gog and Magog. Without a call from the Attorney-General, the Lord Chief Justice of the King’s Bench cannot stir; without an order from the First Lord of the Treasury, the Attorney-General cannot, or at least will not, stir.

19. But, suppose the order received. Comes then the matter before a Jury: and, if there be any occasion, on which, in the multitude of these counsellors, there is a safety, this surely is of the number. Say that, on ordinary occasions, when Government prosecutes, they are but too apt to cast off the responsibility from their own shoulders upon those of my Lord Judge, and economizing thought as they would money, say at once Guilty, to save trouble. On an occasion such as this, and this so unextraordinary a one, little apprehension of any such promptitude need assuredly have place.

20. Thus blind were they, for example, when—in pursuance of the standing conspiracy against the liberty of the press—one of the machinations of which was and is, the converting all history into an instrument of delusion by suppression of all facts and comments, by which sin in any shape might be imputed to any one of Blackstone’s Gods upon earth,—the body of the Editor of a Weekly paper was, at the command of Lord Tenterden, given up to him to be consigned to a two years’ imprisonment, for daring to hold up the character of George the Third in an unfavourable point of view.

21. In ordinary cases, true it is, instances of such blindness have in all times been in sad abundance. But the present case is an extraordinary one. To the necessity of justice to human happiness,—and to the hatred of it in the breasts of English Judges,—the eyes of the public, even of that public of which Jurymen are composed, are at length beginning to open themselves. Sir James Scarlett might cry aloud, and Lord Tenterden spare not,—a Jury, after hearing, from the lips of the Dispatch Court Judge, justice and common sense substituted for the first time to pickpocket absurdity and nonsense, would pause (as the phrase is) before they sacrificed the author of so much good to the vengeance of the opposers of it.

[* ]Prehensors.] 1. Reader, whoever you are, let not the word Prehensor, innovational as it is, startle you: indispensable was the demand for it: and, whatsoever cloud it presents itself as being involved in, a short explanation will blow off. What was wanted is—a word that should signify to lay hold off:—to lay hold of what? Answer—All such objects, whatsoever they may be—as the purpose in question may require to be laid hold of. And these objects—what are they? Answer—things of all sorts, and persons of all sorts: purpose,—that of supplying means of remedy for the wrong complained of, by the demand with which the suit commenced,—or means for the elicitation of the evidence necessary to the proof, or in so far as disprovable, the disproof, of that same wrong.

2. For the designation of this function, true it is—already in use is the word to apprehend, with some of its conjugates. But this composite word has divers other senses: nor is it applied to things: to things of any sort—immoveable, moveable, or incorporeal. No less short of being adequate are the words arrest—to arrest. Prehensor, from the Latin prehendo, without the ap, does what is wanted, clear of everything that is not wanted.

3. By the mere act of laying hold of the subject-matter—whatever it were,—if nothing further were done with it, no good would be done: with this same subject-matter, whatever it be, consequently, by this same operation no good is done, or something further is done: either it is simply ejected out of the place in which it was found, or it is transferred from that place to some other.

4. True it is—that by the words Prehensor and to prehend, of none of the above modes of disposal is any intimation given. But, by no signs which language furnishes, can all these things be signified at once; and, when the original cloud is cleared away, as above, the idea of some ulterior disposal, such as the purpose in question requires, will present itself of course.

5. Operator, operation, mandate by which the orders of the Judge are signified to the operator. For all these several matters, has place the need of appropriate nomenclature. Of the mandate the denomination will be determined by those of the two others.

6. First, as to operator and operation. Under the existing system,—in the language of Justice of Peace procedure, when the operation is prehension, warrant is the word employed for the designation of the mandate, by which it is ordered to be performed; when simple imperation, summons: as to the operator, he is in both cases the same functionary, and Constable is the name given to him.

7. In the language of regular procedure, diversified in an extraordinary degree is the nomenclature employed in the designation of the operator: 1. Serjeant-at-Arms; 2. Sheriff’s Officer; 3. Bound-Bailiff,—vulgariter, Bum-Bailiff; 4. Tipstaff; 5. Messenger; 6. Apparitor: these may serve for examples: for completion of the list, neither time nor space can here be spared.

8. Note, that in some of these cases, the only function given to the functionary is that of the Prehensor; in others, it is that of the Messenger; in others, again, both functions are given to the same individual. In Bankruptcy procedure, confounded under one and the same denomination, namely that of Messenger, are the two so different services—that of a Messenger and that of a Prehensor.

9. Then again when the function is that of the Messenger, the operator is—in some cases, not a public functionary, but an agent of the party: for example, an Attorney’s Clerk: and, in this case, serving and service are the terms employed in designating the operation.

10. In this case, as in all others, the more simple and undiversified the nomenclature employed in the designation of the several mutually-related objects, the clearer are the conceptions conveyed by it. Hence the length of this explanatory and justificative Note.

[* ]Code.] For the purpose of extracting money, to be disposed of in such manner as seems good to them, the constituted authorities find no difficulty, in preparing and causing to be delivered, the appropriate mandates. Witness, for example, the Assessed Tax Notices, by which householders are required to give information of such taxable articles as they have in their occupation. Scarcely of a Prehensor’s Code would the contents be more bulky, than of one of these papers which are twice a-year delivered at every taxed house.

[† ]1. Under the existing system, in the higher class of criminal cases (namely those which from the species of punishment allotted to them are so unappropriately styled felonies),—power of exercising this function is given to the party wronged. So, under the original Roman law in cases called civil.

ii. On this occasion, to the danger of abuse no great regard seems to have been paid. Witness the phrase obtorto collo: witness also the rupit in jus mentioned in Horace.

iii. Small indeed is this danger,—if, where the plaintiff is Prehensor, to the right of prehension the obligation of adduction to the judgment seat, is attached.

iv. Where apprehension of endeavour, on the part of the defendant, to avoid the rencontre has place in the breast of the plaintiff,—more diligence is of course to be expected at the hands of a person thus interested, than at the hands of an uninterested public functionary. But the difference may be supplied, by liberty on the part of the plaintiff to accompany the public functionary: and this liberty, if not taken away by law, will have place of course.

[* ]In the accounts of public offices, this is a customary head. The fund will be provided, in this as in other cases.

[† ]To a deplorable extent, throughout the whole field of legislation, is exemplified the evil of fixation, where variability in the quantity of the matter in question, whatever it be, and thence applicability of such quantity to the particular circumstances of each individual case, is prescribed by prudence. Instances are—as hereinabove mentioned—1. Fixed premiums; 2. As elsewhere mentioned, fixed penalties; especially when in a pecuniary shape: 3. As per Petitions for Justice, Device VIII. (V. 470) Blind fixation of times for Judicial operations, on the occasion of which, the quantity of time best adapted to the purpose is susceptible of variation to an extent more or less ample.—See also Sect. VI. Judge’s Powers, art. 52 to 55.

[* ]Consignee.] 1. On a preceding occasion, namely, in Sect. VI. art. 29, 44, and 47, in the view of conformity to usage, this word was employed, for the purpose of giving expression to an idea, for the designation of which, it has on closer inspection been found unfit: this, as well as several other words, which, for their termination, have this same syllable ee.

2. For the purpose of giving denomination to the species of functionary, whose functions are spoken of in the text, some appellative was altogether indispensable; and a single-worded one, in every instance in which an apt one can either be found or made, is eminently desirable: namely, for conciseness, and for avoidance of that entanglement with the circumjacent words, which is, in the case of a many-worded appellative, so liable to have place.

3. By the three-worded appellative, Holder-in-trust, the idea in question may, with indisputable aptitude, be designated. But, by simple transposition, these three words, as the reader sees, are capable of being, as it were, melted into one.

4. Appellations, bearing the most perfect analogy in relation to this, are in most familiar use. Witness householder, innholder, freeholder, bottleholder. In the word intrustholder the number of syllables is not greater than in this same word bottleholder, so familiar to the practitioners and amateurs of pugilism.

5. Perhaps, for some little time to come, there may be a use in keeping the three component words separated from each other by two hyphens: as thus, in-trust-holder.

6. So much, as to the need and propriety of this second of the two appellations: the second employed as equivalent and synonymous to the first. Now as to the inaptitude of the first.

7. Whatsoever be the operation in question,—for conveying to the mind the idea of it, two sorts of appellations are and have at all times been requisite, not to say necessary: one, for the designation of the operator, or say agent; the other for the designation of the subject-matter operated upon, or say in one word the patient, whether the class this same patient belongs to be the class of things or that of persons: and, if the operation consists in the transference of the subject-matter from one hand (plainly or figuratively speaking) to another, then—requisite to be added is an appellative for the designation of a third object, which may be termed the recipient, or say receiver.

8. For the designation of the operator (whether plainly or figuratively so called) together with the subject-matter operated upon,—each expression being the correlative of the other,—the original language of the lawyer class—namely the Norman-French—furnished a pair of apt desinences, or say terminations: namely, for the operator, or, otherwise er (not to speak of ant and ent:) for the subject-matter operated upon, single é with an accent; rendered into English by a double ee.

9. Thus far, all was and is well. But, in process of time came upon the carpet, as being necessary to the completion of the group, the idea of a recipient, presenting, as above, a demand for an appellative. What was to be done? In this quandary,—up starts, with its accent on its head, LETTER é, and presents to view a species of appellative ready-made, and already in use. True it is—the idea was not exactly the same. It was, however, near of kin: and, the age being a rude and little-discriminating one,—an appellative, that belonged to another idea, and did not exactly fit the one in question, was in the hurry taken in hand, and clapt on to this new idea: as, in a crowded passage, a man will sometimes take up another man’s hat instead of his own.

10. Instances are—consignee, assignee, mortgagee, trustee. After what has been said, consignee and assignee speak for themselves: not so—mortgagee or trustee.

11. As to mortgagee,—the species of conveyance termed a mortgage being the transfer of the subject-matter in question from one hand to another, upon certain conditions,—the mortgagee should, according to the original analogy above-mentioned, be the name of that same subject-matter: and, for the designation of the person recipient, or in one word the receiver, some other appellative should have been, and accordingly should at present be, looked out for.

12. But, in the sense the inaptitude of which has thus been brought to view, so rooted in the language is this same word mortgagee while there is not as yet in use any other single-worded appellative by which this same idea can by possibility be brought to view,—that, for the present at least, it must be left in the undisturbed possession of the ground on which it has planted itself.

13. “For my part,” says the author of these pages, “never till this moment has it seemed to me that the idea associated in my mind with this word was a clear one.”

14. What has added to the confusion, has all along been—the syllable mort: meaning death. Death? what has it to do with the matter? as little as any other thing that can be mentioned. For this species of transfer, before any apt and generally intelligible set of appellatives can be found, Death must be turned out of doors, and a substitute for him or her provided. The Real Property Commission will (let us hope) find this operation not unworthy of being included in the catalogue of its so well-directed cares.

15. As to the word trustee,—it presents itself as being much too extensively and firmly rooted in the language, ever to be drawn out: nor, on the other hand, does any considerable harm appear to be done by it.

By a kindred, though not exactly similar, misapplication, the word “examinant,” substituted to examiner, has been, itself, taken for the subject-matter of examination, elsewhere.

16. Two other words here present themselves as having a claim to notice: namely, assignee and sequestrator. In both instances,—besides their inaptitude for bringing to view the correlative ideas herein above-mentioned,—their import is too narrow to admit of their receiving, on the present occasion, any employment.

17. As to the word assignee, the idea presented by it, is—that of a species of trustee, under whose care and management a stock of things of all sorts is placed, to the intent that it may be brought into the shape of money: of that money, the ultimate destination being—the distribution of it among a set of creditors.

18. In that case, in the idea of the subject-matter confided is not included that of a person: except in the singular, and happily comparatively-narrow, case of slavery: and, for the present purpose, a word capable of being made to present the idea of a person as well as that of a thing, was necessary.

19. By the word sequestrator, the idea presented is—that of a functionary, whose functions are confined to the case where the subject-matter of the intermediate possession is a thing; namely, a thing immoveable, and that not intended to be converted into money.

20. Two sorts of judicatories there are—in which, to a functionary whose functions are of this description, employment is occasionally given by the Judge: namely, an Equity Court, and an Ecclesiastical Court: both acting under Rome-bred-law.

21. Of the term consignee, the use seems to have been, hitherto, confined to the case where the parties, both or one of them, are traders, and it is in the way of trade, that the things in question (which may be actually received or not, as it may happen,) are designed to be received.

[* ]Of property in this shape, mention may be seen made in Penal Code Table, attached to Constitutional Code.

[* ]See Constitutional Code, Chap. XI. Ministers severally, throughout.

[* ]Under the existing system, the colloquial name for a house of this sort is—a spunging-house. The denomination is of that character, which has been termed dyslogistic. See Table of the Springs of Action. (I. 195.) Neutral name, no other than lock-up-house, as above, hath as yet been found.

[† ]Ambulatory.] Within the memory of the author of these pages, Davy, serjeant-at-law, a man alike conspicuous for his eloquence and the profuseness of his expense, was seen travelling on the circuit in the custody of the sort of sheriff’s officer, termed a Bound-Bailiff, or Bum-Bailiff.

[* ]Bailing system.] Final cause of, and motive to, the abuses in this case—1. Lawyers’ profit on the needless operations on the occasion in question performed, and written instruments framed and issued; 2. Benefit of patronage with relation to the several subordinate judiciary offices, by the possession of which the functions in relation to those same operations and instruments are performed.

[† ]Final cause of, and motives to, this needless compulsion—1. Lawyers’ profit, as above, upon the operations and instruments employed in the endeavour, real or pretended, to effect it; 2. Addition to the value of the offices of all sorts employed in such endeavour, and of the patronage consisting of the power of location to these same offices. See Petitions for Justice, throughout.

Though suggested by the abuses belonging more particularly to the Equity Courts, the remedies here brought to view will be found equally applicable to those which, under the existing system, have place in all the other Courts in which justice is professed to be administered.

See a particular account of the needless increase of the expenses, in a letter, signed Henry Beamont, fourteen years officer of the Sheriff of Middlesex, in Spectator of August 14th, 1830.

[‡ ]Over-aged.] Analogous locutions:—1. Overgrown; 2. Overpaid; 3. Over-loaded; 4. Overworked; 5. Over-taxed.

Under the here-proposed summary system—under a system having for its ends in view the ends of justice,—evil to no inconsiderable amount might, every now and then, by consignment performed on this ground, be prevented. Under the existing regular system—under a system having for its ends in view, ends opposite to the ends of justice, namely, depredation, unpunishable, and irresistible, in the shape of profit to lawyers, official and professional—by the power of consignment on this ground, evil to a vast, an immeasurable, and an ever-increasing amount, would be produced.

From the misery produced already by the dominion exercised by the Chancery wolves over the young lambs, let any one, from observation and analogy, figure to himself the addition that would be made to it by the extension of it to the old sheep.

[∥ ]1. The incident by which a case was made for this provision, is a recent enactment of Judge-made law: an Act, made and passed, as in all other cases of Judge-made law, without any words belonging it, by the Earl of Eldon, when Lord Chancellor:—an arrangement by which, with such brilliant success, a new combination was made between sale and denial of justice: sale, for benefit in the shape of profit; denial, for benefit in the shape of ease: sale, to the comparative few who have wherewithal to pay the price; denial, to the immense many who have not.

2. In two interesting publications, the Honourable William Long Wellesley has lately given the history of a course of plunderage, in execution of the above predatory law, of which he and his have been, and still continue to be, victims. Of the property of him and his children, little if anything less than £50,000 (if I understand aright one who should best know, though others say not so much as £5,000) seized and distributed in the sort of receptacle which, in Holy Writ, is termed a den of thieves.

3. On the ground of this precedent, to any individual to whom it is agreeable to give acceptance to the offer—to every such individual, with or without confederacy with the head of the law, or his subordinates—on the ground of this precedent (for, under Matchless Constitution, a single precedent made by a single Judge suffices, on all occasions, to make law) a sure course may be seen opened, for the like plunderage, at the charge sooner or later of all the members of the aristocracy of the country,—those of both Houses of Parliament included. Having taken for the intended victim a sufficiently opulent family, in which a child under age is entitled to property independently of the father,—a Jackal, with or without concert with the Lion, by so simple a process as the filing a Bill in Equity against the father, transforms, by this means, the child into a ward of the High Court: the property in question is thereupon taken into the hands and placed at the disposal of the Judge; and the costs of the suit are taken out of it, as far as it goes:—by so extensively practicable a course of pillage, may the precedent set in Mr. Wellesley’s case be pursued and turned to account, to the extent herein-above described.

4. Now mind what this calumniator-general—this instrument and accomplice of every particular calumniator, who, as above, can and will come up to his price, and hire him—mind how he comports himself, should it happen to himself to be the object of defamatory imputation. Suppose it bribery, for example. If the imputation be true, he takes care not to proceed by civil action: for, in that case, the truth of it may be proved, and he brought to shame: no;—he proceeds by criminal prosecution: and in that case, security being thus provided for all malefactors, the truth is not permitted to be proved, and the man punished is—not he who committed the crime, but he who addressing himself to the Public Opinion Tribunal, gave information of it:—a sample this, out of thousands upon thousands, of what, under Matchless Constitution, is administered under the name of justice!!

5. Note here—that, though, in this case, impropriety, in some shape, in the conduct of the father, must be imputed, it is not necessary that the imputation should have so much as a syllable of truth in it, for (as shown in Petition for Justice, Device 4) in the shop of which the Lord High Chancellor is Master, and his Vice-Chancellor and his Master of Rolls, Foremen,—is sold the faculty of ruining—not only the fortune but the character of the victim; and this by a process, the success of which is altogether out or the reach of disappointment, in every case, in which so much of the pecuniary means of attack as the plaintiff is able and willing so to apply, are sufficient to exhaust the pecuniary means of resistance: instead of suing to Public Opinion, he prosecutes;—thereupon eulogized is the criminal—punished his just accuser.—Matchless-Constitution-justice this!

[* ]Non-disappointment principle.] 1. By means of the non-disappointment principle,—by this means and no other, can any determinate import be annexed to the locution vested rights: take away from it this import, suppose this import not to belong to it, none remains. In case of a right being taken away from a man, if the attributive vested be attached to it, what is thereby meant to be asserted is—that the pain of disappointment thereby produced in his instance is greater than would be produced by the loss of that same right if the attributive vested were not with propriety applicable to it.

2. Where the idea in the mind, in so far as it is clear and determinate, is the idea of contrariety to the rule alluded to by the non-disappointment principle, two expressions commonly employed are—contrary to the first principles of justice, and contrary to every principle of justice. Considered in themselves, these expressions are, both of them, nonsense—mere nonsense. That which they concur in supposing is, that a list of principles and a corresponding list of rules, generally recognised as coming under that denomination, are in existence: whereas, no such lists are capable of being produced by any person by whom the existence of them is thus asserted.

[† ]Thus it is, that, throughout the whole of the Pannomion, or say all-comprehensive body of law, to which the presentproposed Bill belongs, the arrangement made is deduced from the consideration of the quantities of pain and pleasure likely to be produced by it,—or say, from its effects on the happiness of all persons interested, or (as the familiar phrase has it) on human feelings. Void of all claim to regard on the part of any rational mind is every subject-matter of consideration on any other ground than that of its influence on the feelings of some sensitive being.

Correspondent, on every occasion,—mutually connected, and fit to be kept in mind in conjunction, are the subject-matters of consideration following; that is to say—1. Ends in view; 2. Axioms of pathology; 3. Reasons; 4. Rules; 5. Principles:—together, they constitute the grounds of every proposed arrangement:—

1. By an end in view, is meant some portion of good, considered as endeavoured to be produced by the arrangement proposed:—of good, that is to say, possession of some pleasure, or exemption from some pain.

2. By an axiom of pathology, understand a proposition declarative of a connexion as having place between any event or state of things in the character of a cause, and pain or pleausre, or both, in the character of effects of that same cause.

3. By a reason, as applied to a proposed enactment, understand a proposition designed to give information, presenting to view some such connexion as being under consideration, which to the legislative draughtsman served as an inducement to propose the arrangement in question, and which he expects to have the effect of causing those to whose minds it presents itself, to regard that same arrangement with satisfaction.

4. By a rule, understand a proposition declarative of the manner in which the connexion has place between some such cause and the corresponding effect; or say, a statement made of a lot of happiness as likely to be produced by the course of conduct thereby recommended.

5. By the noun-substantive principle, with some attributive attached to it, allusion is made to the corresponding rule: and the number of words that would be employed, with the quantity of embarrassment that would be produced in the sentence by the insertion of the rule into it, are thereby saved.

[* ]In Constitutional Code, Ch. XII. Judiciary Collectively, § 20, Judges’ eventually-emendative function, provision is made for the continued amendment of the law, as often as the demand for alteration manifests itself, by the insertion of proposed enactments certified to Parliament by the Judge in terminis:—the insertion to be made by an appropriate functionary in course, unless stopped by motion made in one or other House of Parliament. Of the effect of this power, an experimental exhibition might by the Dispatch Court Judge be made.

[† ]When the property is to a certain degree considerable, any dishonest person in the situation of executor may, under the invitation given him by the existing system, make a sure profit. Of the whole number of claimants, if there be but some one whom he can procure to join with him in this scheme of iniquity, this claimant commences against the executor a Bill in Equity: whereupon the whole mass, how large soever, of the property, is during the continuance of the suit locked up in the hands of the executor, by whom the interest of it is put into his own pocket. This I have been assured by professional men, is a known and customary practice: in this case a sort of divorce has place, between the sinister interest in respect of delay and the sinister interest in respect of expense: by the delay, sinister interest is increased; by the expense, diminished.

[* ]The author appears, from a note, to have had in view other principles to come in between the above, but has left this portion uncompleted: reference being made to some other work on Legacies, as a source from which illustrations might be drawn.—Ed.

[† ]Foundations of property shaken! will of course be among the cries raised against the proposal of this same Equity Dispatch Court. Foundations shaken! as if that could be shaken which has no existence. Foundations shaken! instead of shaken, say rather established. Resting on the at-present-existing grimgribber, the pretended rule of action rests upon a quicksand with volcanoes under it. All-comprehensive rule, not detur digniori, but detur locupletiori.

Corruption regularly organized, established, universalized, unpunishable, irresistible,—the so-much-boasted purity.

No other machinery, good or bad, applicable to the purpose, being in existence, the Real Property Commissioners, in their Reports, while presenting to view the changes which in their view of the matter require to be made in the instruments employed in conveyancing business, mention the existing Equity Courts as the Judicatories by which execution and effect shall be given to the enactments proposed to be made for this purpose:—machinery which, under the load of expense and delay at present lying upon it, cannot be set to work by one out of perhaps a dozen, perhaps a score, of the sets of persons that have need of it.

[‡ ]1. When Section the first was sent to the press,a the expectation entertained was, that for the purpose of participating in the hereby-promised benefit,—namely, the substitution of a system in which delay and expense are minimized, to one in which those evils are maximized,—suitors in sufficient numbers would join in a Petition to the King for that purpose, and that to them, upon the principle on which arbitration is sanctioned by law, the choice of the Dispatch Court Judge might be committed. Such was the expectation entertained and proceeded upon at the time when the matter of that first section was sent to the press; and so it continued to be, till not only the matter originally destined for this section had been written, but matter also for the whole remainder of the Bill.

2. For the purpose of trying the experiment, a tract moreover was published, intituled “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.”a But before the present section had been sent to the press, it had become but too certain that the experiment had failed—so far at least as regarded the trial of it proposed in that tract to be made.

3. Not only the matter of that publication, including a detailed account of the matter proposed for the present Bill, but the principal part of it in terminis, including the whole of the matter down to the present section, with the exception of some subsequently-made and not-as-yet-communicated amendments, had received, not only from amply competent judges, but from men high in professional eminence, the most unreserved approbation.

4. But, on the part of suitors, such was the terror of what might befal them from the resentment of the lawyers, official and professional, belonging to the Courts in question, that by the invitation given in the above-named tract, from no more than two suitors, one from each of two suits, was any application produced: and in both these instances this obstacle had been removed, the persons in question being in a state of actual hostility with the Court, in the hands of which they had been undergoing a course of depredation and oppression for a multitude of years. That it was in this terror that the failure had its cause, is matter not merely of inference, but also of experience: for, in various instances, by the above-mentioned approvers, endeavours were employed to persuade suitors to join in the proposed petition; and notwithstanding the just estimation in which the opinion of the givers of the advice was held by the receivers of it, still the terror was so great as to prevent them from taking the course recommended by it.

5. By this failure, however, neither had the demand for the remedy to the grievance in question been shown to be less urgent, nor any ground afforded for diminishing the confidence in the here-proposed remedy. On the contrary, the perception and acknowledgment of the inaptitude and utter depravity of the existing judicial establishment and procedure have been increasing daily in intensity and extent.

6. Moreover, the plan for the accomplishment of which a bill had been brought into the House of Commons, on the motion of the learned member who has since been elevated to the situation of head of the law, and subsequently pursued by the announcement of a bill for the same purpose, with the necessary amendments, as being about to be moved for in the House of Lords, has been declared to be dropped.

7. Under these circumstances, how much soever the encouragement to perseverance was weakened, the inducements in other respects remained; and with even augmented force.

8. As to the machinery here visible, the only part which, by the abandonment of what regards the proposed Petition is rendered needless and thence unserviceable, is the matter of Section I. Judge located, how; and a portion, more or less considerable, of Section VI. Judge’s Powers.

9. But though, with reference to the purpose of the present Act, this is rendered unserviceable, to other purposes of still more extensive importance it will, it is hoped, be seen to be in no inconsiderable degree applicable and serviceable: in particular, that portion the matter of which bears reference to the subject-matter of the Penal Code.

[* ]See further as to Bankruptcy and Insolvency, Supplemental Section I. or XXV.—Ed.

[† ]1. Notwithstanding the above provision for the taking of this same information, a Committee of the House of Commons would be not less competent: and by this additional engine, addition might be made to the extent of the information obtainable by the Dispatch Court, as well as the assurance of the completeness of it.

2. Saving might moreover be made in the article of expense: namely, that which would be necessitated by the elicitation of the information from the several Courts, if performed by the Dispatch Court Judge.

3. By orders to one or more of the Equity Court offices, from which returns have of late years been presented, might be obtained the days of commencement, as above, of the suits commenced in the several years: also the names of the Town Solicitors on both sides; or at any rate (what would be sufficient), on the plaintiff’s sides.

4. Of the several proceedings had, down to the then present time—proceedings, that is to say, operations performed, and written instruments issued from and received into the several offices, information would be afforded by the several solicitors (as per Section XIV. Examination of Solicitors:) and thereby of the Committee’s time a correspondent quantity, which would otherwise have to be expended in the oral examination of those same solicitors, saved.

5. If, for any particular purpose,—such as the bringing to view the cause of the longevity of the suit,—the committee should see reason, it would then rest with them to convene the solicitor or solicitors; and, by word of mouth, elicit the appropriate information.

6. Such is the advance which, towards the end in view, is capable of being made by the House of Commons without the concurrence of the House of Lords; and thence, clear of the danger of non-concurrence, as well as of that retardation which, to an indefinite extent, would even in the case of concurrence be inevitable.

[* ]See the note at the beginning of this section, and its relation to this article. The article referred to was afterwards omitted by the author,—Ed.

[* ]Lot.] Apparent objections which present themselves to be obviated, with answers to them, are the following:—

1. Severe the loss, thence proportionable the reluctance, on the part of professional men, all of them, to the furnishing of the information required: the lottery, in proportion as to clients it is an advantageous course, being to lawyers a disadvantageous one.

2. From the disclosure made of the quantity of the business respectively possessed, more or less considerable the suffering.

3. Considerable the difficulty of surmounting this same reluctance, in such sort as to secure the fulfilment of the obligation.

4. Considerable the delay and expense necessary to the causing the orders issued for this purpose to be made known to all the several individuals from whom the information would in this manner be endeavoured to be obtained.

5. Considerable would be the difficulty of ascertaining the fact of the knowledge, for the purpose of applying punishment in case of disobedience.

6. As to the hardship to individuals from the benefit to the community, matter of just regret as it would be in this as in all other cases, it not only ought not to be regarded as constituting a peremptory objection to the eliciting this necessary information, but is not so in legislative practice. Witness, for example, the returns so repeatedly ordered and made of the numbers of the stamps issued out to the several newspaper editors.

7. As to the hardship of the disclosure, and thence the reluctance, it would not however be so great as on a first glance it might be expected to be. From a man’s having little or no business in Equity suits, it would not follow but that he had business to any amount in Common-Law suits.

8. As to the delay and expense of the requisite notification, great indeed would it be were it necessary to give a separate notice to every person on whom the call for the information has need to be made,—namely, the several solicitors residing in or in the near neighbourhood of the metropolis. But situated and circumstanced as they are, one common notice would serve for all as effectually as a separate notice to each. The measure being of course the subject of universal conversation as well as interest during the progress of the Bill, abundant and effectual would be the notice received by every one of them long before the passing of it.

9. By every one who has had any acquaintance with the proceedings in the Courts of Chancery, were it only from the newspapers, it must have been seen in what enormous quantities competition for priority, with correspondent altercation, has in the highest of the three Courts habitually had place. Of complaints of the grievance, no want of length or loudness in that place need be feared; the longer the complaint of the delay continues, the more of it is produced,—expense on the one part, profit on the other, proportionable. The complaint of the fat man in the crowd stands immortalized by the poet’s epigram. Like unto it are the complaints of delay made on an occasion of this sort by learned gentlemen.

10. In one instance, under the Lord High Chancellor’s jurisdiction, the principle which, in the character of a source of decision on the question of precedence, prescribes chance to the exclusion of choice, is actually applied to practice. This is, where for a Commission of Bankruptcy, in different cases, in numbers more or less considerable, by the respective solicitors, application at the appropriate office is made at the same time.

11. For reasons why, in cases similar to this, existence is capable of being with greater benefit to justice given to chance, or the lot-employing principle, rather than to choice, with examples of such similar cases, see Constitutional Code, Chap. IX. Ministers collectively; §16, Located, how; Articles 67 or 8 to 77 or 18.

[* ]Of these same classes of Dispatch Court Judges, the number and lengthiness of the respective denominations cannot but be matters of just regret. This must be confessed. But in both these shapes the imperfection was unavoidable: and in neither is it greater than that which has place in the existing practice.

1. Lord Chief Baron of the Court of Exchequer. This denomination is more lengthy than any one of the hereinabove-proposed denominations; and is, moreover, wholly uncharacteristic. The word Judge is a term employed in the ordinary language of all nations, and is to every ear, without exception, familiar, and free from obscurity as well as ambiguity.

2. Puisne (pronounced puny) Baron of the Exchequer. This is equally uncharacteristic with the foregoing, and not less lengthy than those here proposed.

3. Lord Chief Justice of the Court of Common Pleas. Little less uncharacteristic this, and not at all less lengthy. Moreover, the word Justice is, by reason of its ambiguity, an awkward substitute for the word Judge:—the name of a fictitious entity employed also in making designation of the real entity:—the name of a quality employed also in making designation of a substance,—a living and rational sort of substance.

4. Like observation as to King’s Bench Judges.

5. Lord High Chancellor. This is also uncharacteristic. Little less lengthy is it than the here-proposed appellation. It is not so universally familiar as the word Judge: it belongs not, as that does, to the ordinary language of every nation.

6. Vice-Chancellor has the same uncharacteristicalness. So likewise the same want of familiarity: and, to an ordinary ear, the prefix vice has on the face of it an awkward ambiguity, from which the word depute is free:—the idea opposite to that of the name of the fictitious entity, virtue, being by this application brought up into the mind in conjunction with that which it is here employed to designate.

7. Master of the Rolls. This is in a superior, not to say supreme, degree uncharacteristic; and more than simply and negatively uncharacteristic, as being in a positive sense awkwardly ludicrous. Like the word vice, it operates as an incurable provocative to punning; its inferiority in lengthiness affords not a sufficient compensation for its uncharacteristicalness and its other above-mentioned features of inaptitude.

To the lawyer class, these imperfections are by usage rendered imperceptible: not so to the other classes; more especially to the most numerous, to whom on this as on other occasions most regard is due.

[† ]1. Compare with the security afforded by the provisions herein made for oppropriate aptitude, in relation to Masters-in-Chancery business, the utter absence of all security for such appropriate aptitude in the situation of Master in Chancery under the existing practice.

2. In the case of other Judges of all classes and grades, publicity has place; and this security stands instead of all others: and under all the imperfections which have place, so considerable and effective is this security, that in the comparatively tolerable state in which we see it, it keeps the administration of justice.

3. But in the case of the Masters in Chancery, even this security is wanting: under the veil of secrecy in which the Master’s closet is involved, by the operation of that sinister interest to which unbounded licence is allowed, is carried on the system of depredation and counteraction of all the ends of justice; and these closets are, with or without exception, rendered so many dens of Cacus.

4. Emolument, enormous,—false pretences on which it is obtained, scandalous,—mode of payment, so far as regards fees, such as places interest in a state of as violent opposition to duty as can be conceived. Pay, for the whole year, varying from £3000 to £4000:—number of days of attendance in the whole year, various and accidental; in instances which have many years been before the public, not more than as many as compose five months out of the twelve. In one instance, which has been before the public, a fee of not less than £570 extorted for a signature, which by an automaton might have been subscribed with equal use.

5. Of the business for which Master and Clerk are paid in fees, a vast proportion is done by the Clerk alone: and this part, upon the whole, probably the least badly done. And the emolument being so enormous, thus is the value of the patronage screwed up to an enormously high pitch: for, under these circumstances, no relation or other connexion of the patron can be too weak or too depraved to be thus enriched by him. For depredation and oppression, to whatsoever degree carried, no redress by any possibility obtainable from any hands other than those of the patron, whose interest in it, and benefit derived from it, rises in the same proportion as that of a patron with the incumbent of an ecclesiastical benefice.

6. By a tenth part of the emolument, several times the aptitude might, were there any such desire, be obtained.

[* ]See the subject of appeal more fully treated of elsewhere—e. g. in the tract intituled Scotch Reform, &c. Vol. V.

[* ]An instance of ingenuity directed to this object and with this effect has very lately come to the knowledge of the author of these pages.

Case stated for opinion of Counsel, with fee proportionable. Solicitor’s name upon the brief, as usual; with the papers thereto belonging. Well, says the pre-eminently learned Counsel—what do you bring these papers to me for? I can’t spare the time for looking after these—you must first take them to some other Counsel who will look over them, and report his opinion upon them: and upon his report, not upon the pile of papers, will my opinion be grounded.

[§ ]Transference.] 1. As to the arrangement, by which in the present instance, a suit is, without imputation of misdecision, taken out of the possession of the Judge in whose judicatory it originated, and removed into another, operating upon principles widely different,—taken out of the regular and technical course, and removed into the natural and summary,—in this feature there is nothing that has not its sanction in established practice.

2.—i. In the first place comes the widely-extending case, in which, by the writ called a certiorari, a suit is taken out of any one of the existing local, into one or another of the Westminster-Hall judicatories. On this head, these few words may suffice. Of this arrangement the origin being lost in a manner in the clouds of antiquated lore, no precedent exactly in point, as the phrase is, is afforded by it. True it is, that those courts, out of whose hands the jurisdiction was thus taken, were of the inferior, not of the superior order. But, suppose need of change to have place, what difference does it make whether the courts be of the one order or of the other?

3.—ii. Be this as it may, in the second place comes the whole jurisdiction of the Equity Courts; more particularly that branch of it, by which a suit being in the possession of a set of Common-Law Judges, was and is, without any the least suspicion of misdecision on their part, taken out of their possession and carried on and determined, upon altogether different principles; and this interruption given to the suit at any part of its course.

4. True it is—that, in two circumstances, nor these immaterial ones—the present modern case differs from that ancient case.

5.—1. One is—that in this case, the object is, and the incontestable effect will be, the reduction of the mass of delay and expense from a mountain to a mole-hill: in that case, one effect has been, nor can it be doubted but that one object, and that the main one, was the raising the hill (the appellation of mole-hill would not here be in its place) into a mountain.

6.—2. The other is—that, in that case, during the sleep of the infant legislature—the, in those days, ricketty, weakly, and purblind legislature—the usurpation was effected, by one subordinate instrument of the King’s executive authority encroaching upon another: their common master, if he understood anything, understanding nothing but fighting and hunting, and looking another way, not knowing nor caring what they were about;—in the present case, by the legislature itself,—the only authority which is, or dares pretend to be, competent to the purpose.

7.—iii. In the third place, a proposition there is, which, though not carried into effect, may not be altogether on this occasion without its claim to notice. It is, that about the institution of a commission for the clearing off of certain arrears: an expedient mention of which is made in the Preface. Of the mention on that occasion made of that expedient for the production of the needful effect, the purpose is the exhibition of its impracticability, and of its inaptitude were it practicable. Of the mention here made of it, the only purpose—the only one, but that a sufficient one—is, the presenting to the public at large, and Equity suitors in particular, the observation, that all persons, and in particular all lawyers, who have acceded to that proposition, stand precluded—or, in lawyers’ language, estopped—from stating, as an objection to the present system, the circumstance of its taking a suit out of one set of hands, and placing it in a different set.

8.—iv. In the fourth and last place, look to France—look to Bonaparte’s code: in that so-recently-framed, and so-highly-and-extensively-approved body of existing law, may be seen the same salutary and well-intended arrangement exemplified; though without any such ulterior benefit in contemplation, as that which the here-proposed institution has for its object; namely, the affording, for the efficiency and beneficence of all-comprehensive change proposed, the pre-ascertained security here promised by the cheap and quiet experiment hereby organized.

9. In that one of the French legislator’s five codes, which bears the title of Code de Procedure Civile, Art. 7. is a passage, of which the following is a translation:—“The parties may at all times present themselves spontaneously before a Juge de paix: in which case he will hear and determine the matter in dispute between them, either in the last resort, if either from the law or the parties he has authority so to do, or subject to appeal: and this even where he is not the natural (or say proper) Judge of the parties, either by reason of the habitation of the defendant, or by reason of the local situation of the subject-matter in dispute.”—Here ends the passage; meaning, of course, by subject-matter in dispute, a thing immoveable, such as (for example) a piece of land, a house, or other erection, &c.

10. In the character of a precedent, the value of this arrangement will not escape the notice of a real lover of justice. Off fly the fallacies and cavils, of which the words theoretical, speculative, utopian, good in theory, with their et cæteras, are the vehicles. Behold here, in this law and in this practice, not only what may be done, but what is done, where the ends aimed at are the proper ends of justice. Not that in Bonaparte’s Procedure Code these ends are uniformly, and undeviatingly, and exclusively aimed at: for in the penning of it, the claw of the learned harpy has here and there contrived to come in for its share;a but that they are so in a degree prodigiously superior to any that can be seen exemplified in any Procedure code anywhere as yet established.

11. Danger to justice,—can any ground be formed for any such apprehension, from a power to this effect, given to the individual, whoever he may be, who, in the judgment of the majority of those whose interest it is that the best choice should be made, is the worthiest that all England can afford? Why, for these fifteen years, or more, has this same power been possessed and exercised, and that without complaint, all over France (not to speak of other countries,) by a numerous class of judges, many individuals of which have for their remuneration not so much as £50 a-year as salary, without any thing in the shape of fees.

[* ]Precedent. Of power not less extensive, a precedent may be seen in that given to the Commissioners for Inquiry into the subject of Real Property. And note, that in that case it was not, as here, by the King in Parliament that the powers were given, but by the King alone, with the counter-signature of the Keeper of the Privy Seal. Date of the commission, June 6: year of the King, the ninth: year of our Lord (not added), 1828.

“And for the better discovery of the truth in the premises,” says the instrument, “We do by these presents give and grant to you, or any three more of you, full power and authority to call before you, or any three or more of you, such and so many of the officers, clerks, and ministers of our Courts of Law and Equity, and other persons, as you shall judge necessary, by whom you may be the better informed of the truth in the premises, and to inquire of the premises and every part thereof, by all other lawful ways and means whatsoever.

“We do also give and grant to you, or any three or more of you, full power and authority to cause all and singular the officers, clerks, and ministers of our said Courts of Law or Equity, to bring and produce upon oath before you, or any three or more of you, all and singular rolls, records, orders, books, papers, and other writings belonging to our said Courts, or to any of the offices within the same, as such officers, &c.”

If, when conferred by the Crown alone, the conference of this power is legal, constitutional, and unexceptionable,—how much more clearly unexceptionable where the whole power of Parliament is, as here, applied to it? True it is, that the operations, to which in that case it extends, are no others than those designated by the words “bring and produce,” not extending to definitive transference; but, for the purpose here in question, such transference is necessary.

Turn now to the existing system. Look to it under the so-perfectly-distinguishable, though so-intimately-associated heads of factitious delay and expense; not forgetting complication, thence obscurity, uncertainty, and misdecision.

Living instruments, by means of whom, and consequently upon whom, Equity Courts operate, three: a Sheriff, a Serjeant-at-arms, and a Sequestrator: a Sheriff, for operating indiscriminately upon persons and things; a Serjeant-at-arms, for operating commonly upon persons only; a Sequestrator, for operating upon things exclusively. These, for Equity Court proceedings, by a bill and answer, exclusive of proceedings under a Bankruptcy Commission: as to which, see the next section—Sect. VII. Prehensors.

1. First, as to the Sheriff. This functionary is the common Jack-of-all-sides (juvenile cricket-players will understand this), to four different masters at once; namely, the three Westminster Hall Common-Law Courts, in all ordinary cases, and the Equity Judge, now and then, in an extraordinary case. By the Sheriff, understand, on this occasion, the Sheriff of Middlesex: the sheriff of that county alone, of all the fifty, having been regarded as having his residence near enough to the Equity Justice-chamber, to be capable of being operated upon by the Equity Judge, without preponderant inconvenience; accordingly, over this Edom alone has the David of Equity ventured to cast forth his shoe.

Not much less near at hand, it is true, than Middlesex, are three other counties; Surrey, to wit, Kent, and Essex;—a discovery, of which, for other purposes, and in particular for purposes styled police purposes, use has of late years been made. But, by causes which it would take too much room to explain, no other living instrument of this kind was found so well fitted as this Middlesex one to a Lord High Chancellor’s hand.

Note now how well fitted,—“No man can serve two masters,” says Scripture as well as Reason: meaning, by serve, serve well. But, hundreds of years ago, four sorts of judicial masters there were, besides this one, who, if they had not had each of them a fraction of this functionary to serve them for a servant, would have had none.

There are—the King’s Bench, Common Pleas, and Exchequer National Judicatories, having all of them the Sheriffs of all counties at their command; with the Justices of Peace in general sessions throughout the nation; County Judicatories, these—each having no other sheriff than the sheriff of its own county at its command.

In those days, the process of the King’s Judges being not unfrequently withstood by the Barons and Knights his feudatories,—the operations of civil government could no otherwise be carried on than by a sort of guerilla warfare. Commander of the army in each shire, the Earl—Saxonicé Alderman, Latiné Comes, meaning companion of the King, whence Normanicé Comte, Hispanicé Conde, &c.: Lieutenant-General, Anglo-Latine Vice-Comes, Saxonicé Scire-Gereve, (Deputy Commander of the Tertorial Division, thus denominated:) whence, by contraction, Sheriff.

And so, because, so long ago, this miserable makeshift was regarded as necessary,—it must now-a-days, to the exclusion of every appropriate instrument,—now, when it has so long ceased to be necessary,—be continued.

For centuries upon centuries, this Vice-Comes has been a deputy without a principal: the principal (who, when he had existence, was called the Comes, alias the Earl of the County, or say Shire), an imaginary being, without a real “habitation”—without anything but a “name.” For a specimen, but no more than a specimen, of the suffering—of the practical and too real suffering springing out of this theoretical and ideal confusion, see “Petition for Justice, § 14. Results of the Fissure—Groundless Arrests for Debt.” (Vol. V. p. 491.)

2. Secondly, as to the Serjeant-at-Arms. This functionary is a satellite, appointed on each occasion by the Equity Judge himself. How he came by this his formidable title, requires explanation. Once upon a time, some person or other having omitted to do something which by the Judge he had been bid to do,—his Lordship dreamt that a rebellion had been raised, which being admitted, an army became necessary for the suppression of it. Thence came the Chancery writ, styled a “Commission of Rebellion:” by which was meant—not, as in the case of a “Commission of Inquiry,” a commission to make the thing, for the making of which the commission was issued—not a commission to make a rebellion, but a commission to quell one. Commander of the army, or commander and army, all in one, this same Serjeant-at-Arms.

3. Lastly, as to the Sequestrator.a While, during a course of years, for the sake of the profit upon the expense, the Chancellor, with his myrmidons, was making believe to do that which, if so minded, he could have done, with next to no expense and vexation to anybody, in the course of some number of days or hours,—a sort of operation called sequestration required to be performed: and this, like other operations, required operators. Sequestration, the operation: sequestrators, the operators:—in these may be seen the “manipulus furum,” of whom the Serjeant-at-Arms was, in case of necessity, the Thraso.

For the purpose of giving execution and effect to a portion of substantive law,—and, to that end, for the purpose of giving execution and effect to the correspondent judicial mandate issued on the occasion of a demand made on the Judge for his appropriate service,—on that same occasion and to that same purpose, what is requisite is, that, into the hands of the Judge be taken either the subject-matter itself of the demand—namely, the mass of property or other benefit, of what nature soever it be, which is the object of declared desire; or else a person, who for shortness is called a defendant: meaning thereby a person, who, on the occasion in question, for the purpose in question, is assumed to be in possession of this same object, and prepared to defend himself, in that arena, against all endeavours to take the object from him: though the truth is—that, so costly in this field has the war been made, that out of a thousand, not one is there who, how justly soever entitled to the possession, would, if called upon, be able so much as to begin to defend himself in that same field, with any possibility of effectual defence:—say then the defendant, or proposed defendant, himself. But, this same person, or any person—to what end? to what purpose? Except where, the case being a penal one, the punishment appointed is such as requires the body of the individual to be forthcoming for the purpose of being subjected to it, no use is there for the body, but for the purposes of coming at, by that means, the valuable thing itself, which is the object of the desire.

To this end, the Dispatch Court Judge, if, meaning honestly, he has the power, will act according to the circumstances of the individual case. The demandant he has seen and examined, of course, at the very outset of the suit: this being the very operation from which the suit has received its outset. From this examination he will have framed his judgment as to what cource to take, for the purpose of securing, with the minimum of delay, vexation, and expense, to all parties, the eventual rendering of the service demanded; that is to say,—if, in his view, a preponderant probability has place, that the proposed defendant, unless prevented, will convey, out of the reach of the Judge, not only the subject-matter of the service demanded, but his body likewise, by means of which, in case of need, the compliance with the demand might be compelled, he will for this purpose cause hold to be taken—prehension to be made—of things moveable, things immoveable, and body—one, two, or all three, as occasion may require: mindful throughout, on no occasion to produce so much as one atom of evil, more than is necessary for the production of the preponderant good endeavoured to be produced.

[* ]Taking.] 1. By what hands, then, shall they be delivered into it?

2. To the situation of a judicial functionary of the grade of a Judge, a manual operation such as this is not congenial.

3. To the eyes of the Judge thus ousted of jurisdiction, the witnessing of it would be needlessly painful.

4. Not but that, for the wound thus producible, a precedent, or something very near to one, were it needful, might be found.

5. But no such wound is needful.

6. On the part of the subordinates, on whom the duty is here imposed of submitting to the operation, no such vulnerable dignity has place.

7. On this occasion, as on every other, whatever is done, the less the expense, in every shape, at which it is done, the better.

8. As to superordinates, they will know better than in any open and direct way to attempt to throw obstacles in the way of obedience on the part of their subordinates.

9. Here, then, may be seen—benefit maximized, burthen minimized. Turn now to the existing system: there may be seen burthen maximized, benefit minimized.

10. To exhibit, were it even no more than a rough outline, of the several diversifications of the course taken—taken by the existing system in general, and by the Equity branch of it in particular, for the attainment of these two conjunct sinister ends,—would require, for a basis, a sketch of the whole body of judicial procedure; including, in the Equity part of it, the two vast morbid excrescences—the Bankruptcy Courts and Insolvency Courts.

11. This being here impracticable, suffice it to say that it is by the observation of the opposite practice, as carried on under the existing system, and of the enormousness of the mass of evil produced by it, that the several preferences here recommended were suggested.

12. At the head of the mass stands the portion of it produced by the practice by which for the price set by Judges, to every man who can and will pay that price, the liberty of any and every other man is sold;—sold, together with the additional powers of involving in utter ruin men in countless numbers by a known and infallible process,—supposing him so lost to all sense of humanity and shame as to accept of the invitation—still, as well as for ages past, held out to him by English Judges. Such is the practice by which, on the ground of the false assertion of a debt due, to the amount of which there are absolutely no limits, the prehension of the person of a man, and in consequence the destruction of his commercial credit, may be effected: the act of inflicting the suffering not being preceded by any inquiry into the need of it; the need of it—that is to say, for any one of the three above-mentioned purposes of justice. In the practice of no other country, in so flagitious a form (one may venture to say), have depredation and corruption on the part of judges been seen to manifest themselves. For a brief, but to this purpose sufficient history, of the course by which this part of the system has been brought to its present state of perfection, see Petitions for Justice, Device XIV. Groundless Arrest for Debt.*

13. Root of this, as of every other abomination of judge-made and fee-gathering law, the original sin inoculated by it—exclusion of the parties from the presence of the Judge. Necessary not less to the minimization of the burthen to the defendant, than to the maximization of the benefit to the plaintiff, is information obtained by the Judge, as to the circumstances of the parties on both sides, and in particular on the defendant’s, at the very outset of the suit: for, on the state of the pecuniary circumstances of the defendant will depend the means which, for making provision for the execution-securing as well as for the execution-effecting purpose they afford: and, at that stage of the suit, no otherwise than by the word-of-mouth examination of the plaintiff can that same information be obtained:—of the plaintiff himself, or of any such representative of his, whom, according to his condition in life, the necessity of the case has on that occasion substituted or added to him.a

14. Of the thus all-comprehensive and hitherto unexampled extent here proposed to be given to the power of prehension, one natural enough consequence is—that, to a first glance, not only augmentation of the Judge’s power should present itself as a principal object of it, but, moreover, in a degree more or less considerable, detriment to the interest of the defendant, as the effect. On a closer inspection, however, it will be seen, that, by the variety of choice thus afforded, effectual service is rendered to the defendant’s, no less than to the plaintiff’s side:—whereas, under the existing system, burthensome to an outrageous amount as is the prehension actually performed, still more outrageously burthensome is the power, as above given, of performing it:—at any rate, by the option of substituting to a more a less burthensome mode of operation, no mischievous addition to power is effected: and, with not less solicitude has been looked out for—the mode of operation which will be least burthensome to the defendant’s, than that which will be most beneficial to the plaintiff’s, side.

15. As to security,—for the several modes in which, for the several above-mentioned purposes, it may be given, and the occasions on which it may require to be given, see Section XVII. Prehensor.

16. Minute indeed is the proportion, which the imagination of a non-law-learned reader could present him with, of the immense mass of expense and delay produced by the Equity practice in relation to this subject, with the correspondent probability of misdecision and unjust non-decision: in a word—of the imaginary rule of action thus feigned, the efficiency to all mischievous, mounted on inefficiency to all good purposes. Under the head of Sequestration, six pages in Madox’s Chancery, II. 20, 4to, 210, will suffice to exhibit to him a miniature picture of one part of this mountain of predatory abuse.

17. Suggestions have, of late days, been brought forward, having for their subject-matter imprisonment for debt, considered in the abstract; and for their object—on the face of them, if not at bottom—the abolition of imprisonment, to the whole of the length to which it can, on that same occasion, be employed. Supposing this to be the proposition, with as much reason might be proposed abolition of punishment on every occasion—of punishment in every other form, on the occasion of transgression in every other form. Without the discernment to see that exceptions are necessary, or without patience to attend to them—thus does sentimentality, regardless of the dictates of the greatest-happiness principle, apply itself but too often to the establishment of general and sweeping rules.

[* ]1. The topic of remedies being now, so far as regards the present purpose, at a close,—turn now to the existing system. Of the four species of remedies,—the originally-preventive and the suppressive are not here in question: remain the satisfactive, in which is included the compensative, and the punitive, or say the subsequentially preventive. In relation to these two, what then does the existing system? Of these two, for wrong in no shape does it so much as propose to itself to make provision of more than one. Sorts of shops, of which Judge & Co. are the shopkeepers, two: commodities sold, in one of them, a chance, such as it is, for money, which, when given in the name of compensation for wrong, they call damages; commodity sold in the other sort, a chance for the benefit produced by punishment; the enjoyment, such as it is, reaped by one man, from the contemplation of the suffering produced by punishment inflicted on another:—say, for shortness, the pleasure of revenge, or vengeance: and, in one of the shops, moreover,—namely, the King’s-Bench shop,—you may call for damages or punishment, which you will; but (what seems whimsical enough), both together, even at that shop, where both are upon sale together, you cannot have. True it is—that while, in consequence of your asking for it, they serve out to you a quantity of the commodity you ask for—namely, the chance for damages, they serve out to you along with it, a quantity more or less considerable, of that other commodity which you have not asked for. But, no thanks to them. They don’t know that they do so: they don’t know what it is they are doing.

2. It is not by them that the commodity you did not, is added to the commodity you did, ask for. Not by their hands is this addition made, but by the hands of Nature. It sticks on without their perceiving it, and thus it is that you come by it. Go to a plumber, and buy a quantity of lead: buying the lead, you buy the chance of a quantity of silver in it; but if there really be any, it is more than the plumber knows of: it was left in, to save the expense of taking it out; and, in the case of the King’s-Bench shop, where, under the name of justice, justice or injustice is sold, as it may happen,—whether the quantity of the suffering, which thus sticks to the damages, when actually served out, be sufficient for the purpose of the subsequentially-preventive remedy, is matter of accident. They know as little about it, as the plumber who serves out the silver with the lead, knows what use will be made of either: they know about the matter, as little as they care.

3. A natural question here, is—seeing this—that a shop is always open, where the two commodities may be had together, for the price of one,—the so much less valuable, along with the more valuable, and without any extra charge for it—how is it that, to any of the shops any man goes and gives his money for the less valuable article alone?

4. The answer is—that the difference depends upon evidence: upon the source, and thence the reputed quality, of the evidence which the party wronged happens to have at his command. For, according to the rules of the several shops, along with your money, you must, for the most part, for form’s sake, have at your command and exhibit a quantity of evidence: at any rate a something which, without being evidence, is by them received as and for evidence. The King’s-Bench shop has, as above intimated, two sides—the civil side and the penal side: on the civil side is sold the chance for damages: and there the evidence they insist upon is of a particular sort, regarded as a superior sort;a and if (such is your misfortune) you have none of this sort to produce, you must either go without remedy, or betake yourself to the other side: in this case, all you can have for your money is the pleasure of revenge; and for that, the shop you must apply to is either the penal side of that same King’s-Bench shop, or some other shop, where they have nothing better to sell than this same pleasure of revenge.b

5. But, of this commodity,—the chance of which is thus sold on the penal side, and is worth so little, and to a man who believes in the same creed as those Judges profess to believe in, worth absolutely nothing,—the price, though so high as to be out of the reach of the vast majority of the people, is still abundantly less extortious and unreasonable than that of the chance for compensation.

6. Under the existing system, “no wrong is there that has not its remedy:” such is the aphorism delivered by Blackstone, and ready to be repeated by all those in whose minds law learning has extinguished the sense of shame. “No wrong is there that has its remedy:” this aphorism is not indeed exactly true, but it is beyond comparison nearer to the being so than its above-named opposite.

7. That which, on this occasion, was undertaken for, is an indication given of the inadequacy of the provision made, under the existing system, by Judge-made law, for remedy to wrong in the several shapes of which it is susceptible, together with some general intimation of the causes by which such its worthlessness has been produced: of two of these causes, such general intimation has here been afforded: namely, the absurdity of not so much as attempting to administer any more than one of two remedies, where the nature of the case admits of and requires the application of both; and the still more flagrant absurdity of shutting out or letting in the one and the same evidence,—that is to say, the testimony of one and the same man,—according as it is the one sort of remedy or the other that, if admitted, he would apply for. As to what regards this latter absurdity, further particulars belong not to this place; but they may be found in ample abundance in the Rationale of Evidence.

[† ]1. Note here, that, in several of the above articles, may be seen so many specimens of the matter of the proposed Penal Code, Book or Part I. Offences collectively considered: the remainder of which, namely, Part II., is contained under the head of Offences severally considered.

2. In the accompanying Table, are exhibited the contents of this first part, in and by the titles of the several Chapters: for the present purpose, to the words employed in the original Table, are added here and there a few words of explanation, Annexed to each title is proposed to be, if time and space admit,—a reference to that article of the present section, which presents to view a sample of the contents of it.a

3. Not altogether uninstructive (it is hoped) will be the comparison, if made, of the here-exhibited matter and titles of the proposed Code—with the matters and titles of any work by which, under the existing system, the Penal branch of law is undertaken to be exhibited, and exhibited accordingly, as it is, or, as it is said to be: Law—as it is, namely, Statute law, or say Parliament-made law: Law as it is said to be, namely, Fictitious Law, or say Common Law, or Judgemade Law. Instructive, in no small degree, the comparison—between the anxious and continued regard paid to human feelings throughout the one; and the utter disregard throughout the other:—to human feelings, that is to say—to pain and pleasure—(for the several diversifications of which, in the little work intitled Table of Springs of Action, determinate denominations have been found and employed)—disregard, in a word, for everything but the sinister interest of the framers, contemplated through the medium of the technical words and phrases of which the gallimautrey is composed.

4. In Book or Part II., containing Offences severally considered—under the head of each offence, application is made, of the matter of the greatest part of Part I.: application, that is to say, either by quotation or reference.

5. Of the penal matter employed on the present occasion, no part is there, which is not in and by that same proposed Penal Code, employed likewise and applied on other occasions; but in the ulterior and more extensive use so made, no sufficient reason was seen for omitting, on the present occasion, to make application of it to the present particular use. Being, however, necessarily modified, and in many instances more or less changed, in subserviency to the present special purpose, the several articles are not to be considered as exact quotations from the work at large. By the being thus presented to view as having been applied to a more extensive purpose, the matter will not (it is believed) be found rendered the less applicable to the present purpose.

6. But for the determined withholding of encouragement in every shape from above,—by the mere assurance of appropriate attention, effective encouragement would have been administered, and that same Penal Code would, many years ago, have made its appearance in a complete state.

7. On a late occasion, forgery considered in its application to no other modification of the offence than that by which property is affected, furnished of itself matter for a large folio: and of the ground which, as may be seen here, no more than a part of one single page sufficed to cover, no more than a part was covered by the hundreds of pages of that same folio volume. What, no that occasion as on others, was not considered, is—that forgery, in the whole of its extent, is but one modification of the art of deception;—and that, of all the offences, actual and possible, in the calendar, there is not one, in and to which this baneful art is not capable of being rendered instrumental and suxiliary. Constructed on the condensed plan here exemplified, a Generally-applying Code (so called in contradistinction to a System of Particular Codes, applying to so many different classes of persons)—or say, for shortness, a General Code—may be composed of no more than one or two octavo volumes, and yet be perfect: constructed upon that present pursued plan, it may be composed of so many hundreds, or as many thousand volumes, and still be imperfect. The Penal Code at large is in preparation and considerable forwardness. But, as already intimated, not exactly the same as those here employed, are the terms and method there employed. By the application here made of the principles,—abridgment, and alteration, in other respects, were necessitated.

[* ]1. By the Equity Courts, from first to last, power, legislative in effect, though in so inconvenient a form, has been exercised:—to wit, by the establishment of rules of action, in the establishment of which the King in Parliament—the only supreme legislative authority recognised as such—has borne no part.

2. Not content with this, they have of late years, declaredly, and without disguise, overruled acts of Parliament to a vast extent. Witness the statute of claims, the statute of frauds, the statute for affording protection against undocketed judgments, and the register acts. See Tyrrell, 306. Repealed is the word this most enlightened and beneficently-intentioned professional and official lawyer employs, on this occasion, without scruple. In regard to tithes,—“everything has been presumed,” say the Real Property Commissioners, Report I. p. 64, “to disturb enjoyment, and stir up controversy.” And again, p. 68, “the frequent instances, in which, by technical rules, never understood but by lawyers, the intention of the testator, which Courts always profess to observe, is completely defeated, are a reproach to our law.”

3. The circumstances in which, on the part of the legislature, this anti-constitutional insubordination, confusion, anarchy, and uncertainty as to all rights and obligations, have had their cause,—apply not to this case alone, but to Judge-made law throughout the whole of its expanse: and have accordingly, on many an occasion, been brought to view elsewhere.

4. States of the mind, to which these evils may be referred, are—partly indolence and negligence,—partly sinister interest. Legislators, regarding themselves as having a community of sinister interest with Judge & Co., give themselves thus, by connivance, the advantage of establishing, by the hands of Judges, in an indirect and unobserved manner, and without drawing the attention of the people at large upon the subject,—many an arrangement, which self-regarding prudence might have prevented their attempting to establish by their own hands.

5. Resistance to any arrangement to the effect thus proposed, may accordingly, without danger of injustice or error, be considered and stated as conclusive evidence of a wish and endeavour to give strength and extension to absolute, under the mask of limited, power, in the hands of the ruling one, and sub-ruling or co-ruling few.

6. Any one of a number of words would,—if that same arbitrary power were not obstructed, as it is, by the correspondent and opposite arbitrary power of relatively ignorant men in the situation of jurymen,—suffice to give to these Judges an unlimited power of virtual legislation.

7. In their hands, the word libel would of itself suffice to place the press on the same footing as that which it is on in Spain and Portugal.

8. The word conspiracy has for some time been making its progress over the field of penal law, and is capable of converting into a crime any species of act, on account of which, it is the will, determined by the sinister interest or interest-begotten prejudice, of the Judge, to inflict punishment on any individual by whom that same act, how completely soever innoxious, has ever been done.

9. No wonder that it should be more agreeable to Judges to see the manufacture of the rule of action in their own hands, than in those of the legislature: to Judges, and to all members of the legislature, who, in their own view of the matter, are, as above, linked with Judge & Co. by the tie of a community of sinister interest.

10. As a material and local field is covered by webs, spun out of the bowels of spiders,—so is the logical field of law covered with nets, spun out of the brains of Judges—and more particularly of English Judges.

11. Thus it is, that over so vast a portion of the whole extent of the rule of action, the mind of the Judge is either the best or the worst source in which it can originate: the best, when untainted with, or purged from, the impurity infused into the situation by the fee-gathering system; the worst, when infected and polluted by that all-corrupting contagion.

12. From these considerations has been deduced, a plan for preserving the rule of action,—when brought from the state of Judge-made law, into the state of a code,—from being covered over with a fresh growth of that same imaginary and spurious law.

13. To the general propositions laid down by Judges, in the delivery of their judgments,—as well as to the tenor of those judgments themselves,—it would be made matter of duty, to every Judge, as often as he saw, in the text of the Code, a passage presenting a demand for amendment—whether defalcative, additive, or substitutive—to apply a proposed amendment, expressed in the very words, in which, if approved, it would stand as part of the act to which it applies itself: exactly in the same way as that in which an amendment is applied in and by a legislative body: in which case,—in so far as, by the only legitimate legislature approved,—it would be aggregated to, and become part and parcel of the body of the Code. In relation to this matter may be seen, in terminis, a string of provisions in the proposed Constitutional Code, when published: to wit, at Ch. XII. Judiciary Collectively—§ 20, Judges’ eventually-emendative function.

14. By so simple an expedient, and with such entire certainty, will be accomplished—that state of things, the accomplishment of which, in the hope and endeavour to prevent it, men in such numbers have been so forward to declare impossible.a

[* ]Necessary.] 1. Of the necessity of all this precaution, the persuasion has for its ground the observation made of the rooted habit of insubordination, which, under matchless constitution, has place, on the part of the Judges of the Superior Courts, in relation to the legislature.

2. In two distinguishable shapes does this insubordination show itself: not only muffled up in a covering of technical jargon, as in the case of a decision on grounds foreign to the merits (as to which see Petitions for Justice, V. 476); but, even in an open way, by decisions, on the occasion of which, disobedience to Acts of Parliament is explicitly and undisguisedly avowed.

3. In the practice of the Earl of Eldon, when Chancellor, an instance of it may be seen in the pamphlet entitled “Indications respecting Lord Eldon,”a (V. 348.) No want on the part of the learned fraternity of lawyers will there be of exertion to frustrate the object of this act. Their endeavours must be anticipated and provided against. For further example of what is capable of being done in this way, behold a case which happened to fall within the cognizance of the author of these pages. Needful for a public purpose was a piece of land to be bought by government. Attorney-general, the now Earl of Eldon: Solicitor-general, the now Lord Redesdale. Under their joint care was drawn an instrument necessary to the obtaining possession of the land: reluctance on the part of an occupier was necessary to be provided against, and power of seizure in a certain event provided. In a certain case, yes: but in what case? In the case of “refusal,” said the instrument: in that case and no other. What was the consequence? That an occupant had but to sit silent and inactive, forbearing to signify any refusal; and there the business would have ended, unless King, Lords, and Commons, had been set to work afresh, to set it a-going again. After much entreaty, with no small reluctance, these pre-eminently learned persons were induced to make the requisite change. Of this inaptitude of expression, where are we to look for the cause? To inaptitude in a moral shape, or to inaptitude in an intellectual shape? In a moral shape, in one; in an intellectual shape, in both—was the hypothesis of one who was a sufferer by the delay: on the part of both, the indescribable and continually-declared horror, of all change is matter of notoriety:—horror of all change;—in other words, anxiety to preserve from diminution the aggregate mass of human suffering, leaving it to receive increase from the undisturbed action of all those causes, by which it has been raised to the height at which it stands. These things considered, figure to himself who can, the agonies into which they will be thrown by the prospect of a Dispatch Court!

4. By the hands of Judges the ruling and influential few are thus enabled to serve their own particular and sinister interest, at the expense of the interest of the subject-many, in an oblique and unperceived course, in cases in which shame or even fear would prevent them from doing so in a direct and avowed way.

5. The emblem of the cat’s paw is thus in some sort realized: in some sort,—but with this difference: in the fable, it was not without reluctance, nor without smart, that the quadruped lent its hand: whereas in the case of the bipeds, no smart is ever felt, nor consequently any reluctance: in the stock of the ready-roasted and tempting chesnuts they got their full share.

6. This community—of feeling, and sinister interest, and conduct—can never be too frequently brought into nor too distinctly and conspicuously held up to view.

[† ]1. As to the check thus applied to the power of the Judge,—in the eyes of corruptionists, and all other persons, if any there are, who are wedded to the existing system, far from affording an answer to any objection on the score of the magnitude of the power, it will operate as an additional objection: forasmuch as, in so far as it has this effect, it establishes what in such eyes will, of course, be a bad precedent; having for its tendency, the reconciling the public mind to the idea of subjecting to eventual punishment, and thereby to present and actual controul, those who, in the existing state of things, are not by law subject, in effect, to punishment or controul in any shape.

2. The greater the power a man has of doing wrong, the less likely is he to do wrong;—such is the vulgar theory; till at last, when you come to the highest pinnacle in the temple of power, there you behold a being perched upon it who is under an absolute personal incapacity of doing wrong in any shape—a being who could not do wrong, were he to labour at it with all his might:—and, under matchless constitution, upon this assumption is government founded.

3. The King is impeccable; the House of Lords is impeccable; the House of Commons is impeccable: and yet there are not three impeccable, but one impeccable—the Parliament. The House of Lords is legion; the House of Commons is legion; but these are legions, not of unclean, but of the very cleanest spirits. Whosoever would find favour in their sight must thus think, or pretend to think, of the constituted authorities. Of unintentional error, a successor of each official or other influential person may be susceptible; of intentional error, of evil-consciousness, not: neither of the one nor the other, the actual incumbent.

4. Intentional error or misconduct in any shape, especially in that shape in which it has place every day on the part of all,—that is to say, departure from the law of veracity and sincerity,—is universally held a good ground for a man’s subjecting himself to the risk of being put to death by a disputant, for the chance and hope of putting to death that same disputant.

5. Neither on this occasion, nor on any other, should the utter impunity secured to Judges under the existing system be ever out of mind. Urged by remorse, or any other less difficultly supposable cause, should an English Judge court punishment, his prayer would not be granted. Nemo auditur, perire volens—is among the maxims of Rome-bred law: in English law, it would not be cited, but the benefit of it would be granted.

6. If in large proportion men were not found silly enough to give credence to absurdities in the shape above pointed out, men would not in so large a proportion, not to say universally, be found possessed of the effrontery necessary to the giving utterance to them. But forasmuch as every man perceives that it would be for his benefit to be regarded as possessor of absolute perfection, or something little short of it, and his pretensions would find no opponent in any other man whose pretensions to it he does not oppose,—hence it is that by common consent—by an agreement, not the less effectual for being tacit,—every such man gives false evidence in favour of other, and by this evidence the unreflecting multitude of people without doors are, in but too large proportion, deceived and dealt with accordingly.

7. Thus would the check provided threaten them with the prospect of seeing themselves divested of the power of exercising depredation and oppression without stint: that power which so lately, by the influence of Lord Eldon, Lord Tenterden, and Mr. Peel, obtained at the hands of Parliament, in addition to those motives which can never be wanting: the means of heaping affliction on affliction, on a class of men distinguished from all others by the distress under which they were labouring: namely, by the power of imposing on them taxes without stint; this, for the purpose, and with the effect, of putting the money into the pockets of the learned collectors.—See Indications, &c. V. 348.

8. For, in one of the ways or modes in which subordination is established, in relation to this newly-invented sort of Judge, would—not only the Chief Justices of the Common-Law Courts, but the Lord High Chancellor himself, be unavoidably placed in a state of subordination.a

9. Manifest, it is true, to the eyes of the Chief Justice of the King’s Bench could not but be the state of subordination in which, in the more direct and conspicuous mode, the newly invented functionary, placed, as above, over his head, will be reciprocally placed under him. Still, by what he gained in this way, far from adequate would seem to him the compensation for what he would lose in that other way.

10. For, in no instance could the old established dignitary inflict punishment or pronounce sentence on conviction on the new intruder, without presenting to the imagination of the people at large, a scene, in which he himself would be acting the principal character, while undergoing that same humiliation.

11. Consequence, of course,—from the great Westminster-Hall volcano, now at least, if not before, a volley of explosions:—explosions of learned gas from all quarters.

i. “All this immense mass of power! a mass so absolutely unprecedented! and to whom?—to such an upstart creature of the fancy, as this imagined Judge:—power, over every member of the community, the King alone excepted: power, over everybody, even to the purpose of punishment: power, over the head of the law!—power, and for the declared purpose of superseding his authority!—Constitution subverted! all good order—order itself destroyed, and confusion substituted.

• “Blush! blush, thou sun! Start back, thou rapid ocean!
• Earth! mountains! valleys! all commixing crumble!
• And into chaos pulverize the world!
• For Grimgribberian has received a blow!
• And Chrononhotonthologos shall die!”

ii. “And the inconsistency! the monstrous inconsistency! The thus constituted supreme dignitary, to whom this immense and unprecedented mass of power is given, made to answer to interrogatories! subjected to a treatment, to which the Common Law, in its matchless humanity, suffers not the vilest criminal to be exposed!” Thus far for the ears of the lay-agents.

iii. Then, in a whisper, to learned brethren—“What a precedent this! At this rate, where is the criminal that will escape?—at this rate, a man really guilty will have no chance! He will confess at once!—all our learning, all our ingenuity, all our eloquence, will be of no use to him! Think of the learned pockets!—think of our pockets!—think of the vacuum this will make in them! Instead of coming to us, as at present, his money, if he has any, will go to the party he has wronged! What can be more contrary to the very first principles of justice, to every principle of justice?”

iv. And then there is the ex-officio information! Look at these reformists. At one time thus crying out against it; now they are giving employment to it!

v. Then there is the Chief Justice of the King’s Bench enabled now (and as to his willingness, can it at any time be doubted?) to wreak his vengeance on the intruder, by whose upstart power, judiciary authority is in all its established shapes laid low. And to enable him to give himself this regale, what is there wanting, but an invitation from Mr. Attorney-General?

vi. Then sits a jury. But, with the united eloquence of the Lord Chief Justice and the Attorney-General, the mouth-piece of the Crown, thus enlisted together in support of a cause so much their own, where is the Jury that will be able to stand against them? What word can possibly present itself to their tongues other than the word Guilty?

12. Tantalizing, in a sad degree, will thus be the situation of a Chief Justice of the King’s Bench. No otherwise could he root out the effectually responsible power of the Dispatch Court Judge, than on condition of thus undermining his own irresponsible and arbitrary power, that power of maleficence without stint, the loss of which is to every possessor of it, naturally so intolerable.

13. Think of a Lord Tenterden, thunderbolt in hand; and, opposite to and under him, a Sir James Scarlett, calling upon him to hurl it at the head of the devoted Salmoneus!

14. So much for learned objections. Now, at the sound of plain sense, behold them vanish. Each taken separately,—strong, it must be confessed, are the two antagonizing powers. Put them together, and, like the salt with which our food is seasoned, the elements they are composed of put off their corrosive nature, and become mild and salutary.

15. Out of the two dangers is formed security. The old established functionaries will not suffer anything;—and as little will the new created one.

16. As to subjection to interrogation, what danger to innocence is it pregnant with? what consequence, worse than that of clearing it of any imputation that may have been cast upon it?

17. From what source did these objections ever spring, other than that of a wish to afford to guilt, in every shape, an encouraging chance of escape?

18. As to the two Giants—the Chief Justice and the Attorney-General, grim as they are on all occasions, on the present occasion behold them thus rendered not only less grim, but motionless: Motionless! Yea, even as Gog and Magog. Without a call from the Attorney-General, the Lord Chief Justice of the King’s Bench cannot stir; without an order from the First Lord of the Treasury, the Attorney-General cannot, or at least will not, stir.

19. But, suppose the order received. Comes then the matter before a Jury: and, if there be any occasion, on which, in the multitude of these counsellors, there is a safety, this surely is of the number. Say that, on ordinary occasions, when Government prosecutes, they are but too apt to cast off the responsibility from their own shoulders upon those of my Lord Judge, and economizing thought as they would money, say at once Guilty, to save trouble. On an occasion such as this, and this so unextraordinary a one, little apprehension of any such promptitude need assuredly have place.

20. Thus blind were they, for example, when—in pursuance of the standing conspiracy against the liberty of the press—one of the machinations of which was and is, the converting all history into an instrument of delusion by suppression of all facts and comments, by which sin in any shape might be imputed to any one of Blackstone’s Gods upon earth,—the body of the Editor of a Weekly paper was, at the command of Lord Tenterden, given up to him to be consigned to a two years’ imprisonment, for daring to hold up the character of George the Third in an unfavourable point of view.

21. In ordinary cases, true it is, instances of such blindness have in all times been in sad abundance. But the present case is an extraordinary one. To the necessity of justice to human happiness,—and to the hatred of it in the breasts of English Judges,—the eyes of the public, even of that public of which Jurymen are composed, are at length beginning to open themselves. Sir James Scarlett might cry aloud, and Lord Tenterden spare not,—a Jury, after hearing, from the lips of the Dispatch Court Judge, justice and common sense substituted for the first time to pickpocket absurdity and nonsense, would pause (as the phrase is) before they sacrificed the author of so much good to the vengeance of the opposers of it.

[‡ ]1. When Section the first was sent to the press,a the expectation entertained was, that for the purpose of participating in the hereby-promised benefit,—namely, the substitution of a system in which delay and expense are minimized, to one in which those evils are maximized,—suitors in sufficient numbers would join in a Petition to the King for that purpose, and that to them, upon the principle on which arbitration is sanctioned by law, the choice of the Dispatch Court Judge might be committed. Such was the expectation entertained and proceeded upon at the time when the matter of that first section was sent to the press; and so it continued to be, till not only the matter originally destined for this section had been written, but matter also for the whole remainder of the Bill.

2. For the purpose of trying the experiment, a tract moreover was published, intituled “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.”a But before the present section had been sent to the press, it had become but too certain that the experiment had failed—so far at least as regarded the trial of it proposed in that tract to be made.

3. Not only the matter of that publication, including a detailed account of the matter proposed for the present Bill, but the principal part of it in terminis, including the whole of the matter down to the present section, with the exception of some subsequently-made and not-as-yet-communicated amendments, had received, not only from amply competent judges, but from men high in professional eminence, the most unreserved approbation.

4. But, on the part of suitors, such was the terror of what might befal them from the resentment of the lawyers, official and professional, belonging to the Courts in question, that by the invitation given in the above-named tract, from no more than two suitors, one from each of two suits, was any application produced: and in both these instances this obstacle had been removed, the persons in question being in a state of actual hostility with the Court, in the hands of which they had been undergoing a course of depredation and oppression for a multitude of years. That it was in this terror that the failure had its cause, is matter not merely of inference, but also of experience: for, in various instances, by the above-mentioned approvers, endeavours were employed to persuade suitors to join in the proposed petition; and notwithstanding the just estimation in which the opinion of the givers of the advice was held by the receivers of it, still the terror was so great as to prevent them from taking the course recommended by it.

5. By this failure, however, neither had the demand for the remedy to the grievance in question been shown to be less urgent, nor any ground afforded for diminishing the confidence in the here-proposed remedy. On the contrary, the perception and acknowledgment of the inaptitude and utter depravity of the existing judicial establishment and procedure have been increasing daily in intensity and extent.

6. Moreover, the plan for the accomplishment of which a bill had been brought into the House of Commons, on the motion of the learned member who has since been elevated to the situation of head of the law, and subsequently pursued by the announcement of a bill for the same purpose, with the necessary amendments, as being about to be moved for in the House of Lords, has been declared to be dropped.

7. Under these circumstances, how much soever the encouragement to perseverance was weakened, the inducements in other respects remained; and with even augmented force.

8. As to the machinery here visible, the only part which, by the abandonment of what regards the proposed Petition is rendered needless and thence unserviceable, is the matter of Section I. Judge located, how; and a portion, more or less considerable, of Section VI. Judge’s Powers.

9. But though, with reference to the purpose of the present Act, this is rendered unserviceable, to other purposes of still more extensive importance it will, it is hoped, be seen to be in no inconsiderable degree applicable and serviceable: in particular, that portion the matter of which bears reference to the subject-matter of the Penal Code.

[a]For example: except where, as here, the disputants come jointly and unanimously to the judge for his arbitration, no personal attendance, on the part of them, or any of them, until attorneys have been appointed and acted on both sides; no personal attendance; consequently, no original election de domicile, by parties; nor at any subsequent time any such election, by any other persons.

[a]Sequestration and Sequestrator are terms of Rome-bred law: employed and applied to use, in both branches, spiritual as well as temporal, of that same important rule of action and source of judicature.

[*]Assizes.] True it is—that, in that case, the matter of the record being, nearly the whole of it, in its nature useless, no use is made of it: insomuch that, were the same quantity of blank paper sent into the country and back again, the service thereby rendered to justice would not be less than that which is rendered by the transference and retransference of the learning-fraught parchments. But, in Equity procedure, it is with the elicitation of the evidence that the suit commences; this is, in every case, the first operation performed: that is to say, the commencement of that same process; whatsoever be the number of years that may have been made to elapse before the conclusion of it, instead of the minutes—yes, frequently the minutes—that would have sufficed for it.

[a]Examples:—In case of mental imbecility, by reason of early minority, or insanity, the appropriate Guardian: in case of absence in foreign parts, the Agent: in case of a body corporate, a Deputy, in the person of a member, or an appropriate functionary.

[a]For example, if, in the King’s Bench shop, they have got from you all the money you can command, so that you are unable to pay for this or that instrument the exhibition of which they have rendered necessary to the carrying on of the suit on your side,—in this case, they say that you hold them in contempt, as per note to art. 48; and this contempt they consider as being conclusive evidence of your being in the wrong, and deal by you accordingly; of your being in the wrong, on whichsoever side of the suit you are—whether the plaintiff’s or the defendant’s.

[b]For example, the Justice of the Peace Court, called the General Sessions, or Quarter-Sessions. absurdity of not so much as attempting to administer any more than one of two remedies, where the nature of the case admits of and requires the application of both; and the still more flagrant absurdity of shutting out or letting in the one and the same evidence,—that is to say, the testimony of one and the same man,—according as it is the one sort of remedy or the other that, if admitted, he would apply for. As to what regards this latter absurdity, further particulars belong not to thisplace; but they may be found in ample abundance in the Rationale of Evidence.

[a]The Table thus referred to, does not appear to have been prepared by the author: it has not been found among his MSS.—Ed.

[a]Imagery and allusion are helpers to memory. Image the first: scarred thus would be the neck of the Hydra. Image the second: cleared off as by an all-consuming fire,—cleared off never to repullulate—would be the jungle, in which so many wolves in sheep’s clothing—inhabitants and lords of the soil, lie in wait for the passenger.Strongly perceptible is the want of an arrangement of this sort, in all the existing bodies of law, the arrangement and language of which have their origin in Rome-bred law; more particularly in Bonaparte’s Code: and from this deficiency has been deduced an argument against Codification—against the applying to its use, the only instrument, by which men can be preserved from being deprived of the benefit of all their rights, and being subjected to all the established punishments, for want of this saving knowledge, the acquisition of which is, by all supporters of Judge-made law, purposely endeavoured to be rendered impossible.

[a]See Blackstone III. ch. 25. Every court inferior in power to Westminster-Hall Court is treated somewhat cavalierly. It is called “a base Court,” and that imputed to it is not “Error” but “False Judgment.”So in III. ch. 23, p. 372, the case of a Bill of Exception: in which case the subject-matter of virtual appeal is the opinion given by the Judge for the direction of the Jury. Note, if worth while, the humiliating circumstance.

[a]As to the different modes of subordination, see Introduction to Morals and Legislation, Chap. XVIII. Division of Offences (l. 96.)

[a]Section I. to VIII. were in print at the time of the author’s death.—Ed.

[a]Published in 1830—(see above, p. 289.)—Ed.